Results in...0% discharge w/severance! Think I Need legal help! Long post

Quick background...TSgt with line number, 14 yrs 11 mo. active service as crew chief. For the past year, I have been the Crew Chief Section Chief for my unit, no problems doing my job...you know, desk job writing EPR's and doing the schedule.

My condition history:
3 years ago, at my previous station, I started having bad bad pain in my neck that radiates all the way into my left hand with numbness/tingling. Sometimes had same symptoms in my right arm. Started conservative treatments then (PT, injections, meds). Seen by 2 civilian neurosurgeons at that base, neither of them recommended surgery because my herniations weren't bad enough to go cutting up my spine . I PCS'd a little over a year ago to an area with a greater selection of more experienced doctors. Had surgery within 6 mo. of PCSing. (Cervical fusion C5-C6) My surgery was about 8 mo. ago.

The surgery didn't make me feel much better, but it did take away a lot of the numbness. I still have most all of my original left arm aching, gnawing, radiating pain and a lot of new pain in my neck and some new in my arm. Surgeon says my fusion is healing good though and I shouldn't be in pain. That's how he documented it too. Said I'm improving nicely. But I am still in pain! So that's what I tell him, my PCM and everybody...I'm still hurting! Yet they don't listen.

About 6mo. after my surgery is when my MEB was started (IDES), my PCM said it was because I still have pain and I can't be nondeployable and on a profile forever. Oh yeah, I can't be on my powerful narcotic pain medications forever either. Well, get me fixed and you can take me off the profile, off the Meds, and send me to wherever! (By the way, my unit doesn't deploy.)

Today, I got the IPEB results. Unfit 0% discharge with severance. My CAT I Unfitting conditions are: 8510, cervical radiculopathy, right upper extremity and cervical radiculopathy, left arm.
CAT II Unfitting but not compensable or ratable:
1. Disc protrusions @ C3-4, C5-6, C6-7 and disc fusion @ 5-6. 30%
My ROM is 3 degrees Fwd Flexion (from the VA Examiner)
2. Thoracic spine DJD (Not sure what this ROM was) 20%
3. Left hip Bursitis 10%
4. Left shoulder Bursitis 0%
5. Left shoulder subluxation of sternoclavicular joint 10%
6. Right shoulder subluxation of joints 10%
7. Right hip bursitis 10%
8. Tinnitus 10%
The VA rated me @ total of 70% for these conditions.

I couldn't believe my commander's letter. He said I couldn't do my job because I can't lift anything. Seriously? I lift pencils and paper and click the mouse! Yes, I probably couldn't do my job if I was a young airman on the flight line, doing all the work. I'm a section chief in the office, and that's mostly where I would stay for the rest of my time in. My commander knows this.
So anyways, I guess the biggest problem I have is the way they rated me. They rated me for my pain and not for the fact that I have screws holding my neck together. The code they put on me is 8510. That's paralysis of the extremity or something. I've never even had paralysis anywhere. I don't get it.

Jason do you or anybody know what I can do? I understand my career is probably over, I just want my retirement and benefits. (I.E. 30% for the 3 degrees ROM in my neck)
Thanks in advance for the help!
Adam
 
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Ask for a Formal PEB. I assume you did that when you received the results from the IPEB. You will be scheduled to go to Lackland to meet the Board in person and will have an attorney assigned to you when you get there. In the meantime, go to the VA Schedule for Rating Disabilities(VASRD) and look up each of the codes they assigned to you. See if there is a different code and/or disability rating (10%-100%) that better meets your physical symptoms AND is documented in your medical records. The AF is to rate you based on the VASRD so your case before the FPEB will be to show what codes and disability ratings better apply. Here is the link to the VASRD.
VASRD: Electronic Code of Federal Regulations:
You were entitled to an attorney to help you for the IPEB. Email your PEBLO and tell him/her that you did not get this help and you would like it in preparation for the FPEB. The authority for an attorney for the IPEB and FPEB is: " Department of Defense Policy memorandum on implementing Disability-Related provisions of the National Defense Authorization Act of 2008, Oct 14, 2008, Enclosure 8, E8.1.1). The Af ignores this Policy but at least you are getting a record of requesting the help. Then, when the PEBLO doesn't know what you are talking about, ask the PEBLO to get you the legal contact info for the FPEB in Texas. That office has basic information it will provide to you. Concerning the medical situation with your arm, you might see if you can get your doctor to refer you for an EMG to test if the nerves are working right in your arms. If they don't refer you for one, it might be worth the money (a lot of it) to get one done on the civilian economy to show if there is damage to the nerves. I assume you already have had an MRI and it did not show nerve compression. Also, get the list of what codes the VA rated you on and compare with what the AF rated you. In Section 5B of AFI 48-123, you will see a list of conditions that can make you unfit for continued service. The AF is supposed to rate you on conditions that are service connected and are unfitting as listed in the regulation. A final word of caution, the FPEB does internet searches on the people who come before it to see if they can find information that suggests you are healthier than you say - they don't tell you what they have seen. This is not compatible with your right to a full and fair hearing, but until the courts smack them down for it, it is not likely to change. So, make sure you and your family have Facebook, Myspace, etc on private or taken down. Good luck
 
Please someone chime in, CAT I Unfitting conditions are: 8510, cervical radiculopathy, right upper extremity and cervical radiculopathy, left arm. rated 0% w/ severance.

This does not make any sense, how can the board rate radiculopathy at 0% and just skip over what actually caused the damn radiculopathy? The disability should originate from the various levels of the spine. With the spine adjusted to create pain or numbing agents through out various limbs of the body, it is clear the spine is the culprit.
 
Agree - it does not make sense. All unfitting conditions must be rated with a rationale given for how they applied the VASRD to your specific symptoms.

For the Formal PEB, have your med records and letters from people who know you well explaining how this is impacting your life now and pre-injury.

As to rating your spinal fusion, go to VASRD Section. 4.71a - the schedule for rating spinal injuries. The section called "The Spine" discusses how to rate just spinal issues. But any other symptoms, such as radiculopathy must be rated separated (which they did). Read all the notes in that section and it explains how your spine has to be rated. VASRD Code 5241 is the Spinal Fusion code. If you meet the criteria for that code due to the number of incapacitating episodes or range of motion, then it must be rated also.
As to your Cat II unfitting conditions, if any of those are symptomatic, they should be rated also because the AF has to rate you on all your unfitting conditions which taken as a whole make you unfit for your job.
 
I'm still Confused on how an Actual Spinal Disability was not in the CAT 1 but radiculopathy was??? How can he fight this, I mean it's clear the IPEB dropped the ball but what if there rational is, the radiculopathy is the main issue and the jacked up back isn't. I don't see how you can have a secondary without the primary, it just sounds really backwards to me. Please someone correct me if im wrong.
 
Hey guys, sorry I didn't realize y'all had replied to my post. I have done all the searching through the VASRD and the DODI 13.XXXX whatever reg. I used to be QA in aircraft maintenance so I have a lot of experience looking things up and interpreting AFI's lol. I tell you what, they picked the wrong guy to give a f@#ked up rating to. From my findings, I should be rated under code 5243 Intervertebral disc syndrome, and then my ROM of 3 Deg fwd flexion used to get my rating. My rating would then be 30%. Someone chime in if you see it differently.

I also searched through my records and found doctor visits all the way back to 2002 up to now, for my neck killing me (pain). Would this be a factor since it shows I started having problems in just my neck before anything else? As far as EMG's go, I've had several over the last 3 years. One was to check for Carpet (Carpel) Tunnel and was positive for mild in the right. I had a recent EMG for my neck stuff, about 2 mo. ago, that came back normal, just like all my other neck EMG's. The techs doing them told me an EMG was just to check for nerve damage and a "normal" result doesn't necessarily mean nothing is wrong and that you are not having pain. I tell you, I get sick of explaining to doctors and medical people that I still have pain. I get the feeling all the time that they don't believe me. This is hard on me and any little bit of stress I get doubles my pain and that is no exaggeration. There is nothing worse than suffering and being treated like you have nothing wrong. This is where I'm at with my Neurosurgeon now. Last time I saw him, he wouldn't even let me talk hardly. He has pretty much wrote me off because my vertebrae are starting to fuse slightly. Luckily I have a good PCM, she has referred me to another neurosurgeon to see if something else can be done. (still waiting on that appt) I feel extremely lucky for this opportunity.

So anyways, yesterday I signed the forms, demanding FPEB and now I'm waiting on my date to go down. I had no idea about them giving you representation for IPEB. Wish I knew that before. But I guess the main thing for me, is I need to prove to the board my neck is what limits me correct? And this should be done by first and foremost...providing medical evidence I.E. medical records, including EMG findings. Second...letters from supervisors/co-workers. Third...letters friends/family? If anybody has any other helpful tips or must do's, please chime in! Thanks to everyone for your support!
Adam
 
hey Adam, sorry to hear you got screwed. I'm waiting for my results too...I live in fear. Its like they guess and low ball everyone. You sound like you have it together. They want the facts, so you've got it right. Your records, EMG's and family/friend input saying you are stand up guy. maybe how you lived before and now after. And, btw-I'm not fixed either...so I hear ya there. I don't take the narcotics and I got shit for that. The guy was like, how am I suppose to believe you're in pain if you're not taking the Narc's...Umm, just because I want to save my liver, kidney and brain...how about you pay my $6,000 holistic medicine healing bill..didn't think so! Anyway, I'm sorry I can't help you, but maybe you can help others who are next in line after you...pave the way-make your stand and Don't back down! Keep us posted! Even when you get there, if you need something-let us know! Good Luck! Stay Positive, oh, and I think you should probably have some numbers and figures in-line, as to what you think your perm should be. Gut feeling that they are going to ask you.
 
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