Seeking Advice

L

Loethar78

PEB Forum Regular Member
Registered Member
Here is my dilemma:

I was medically discharged from in Nov of 2001 with over 5 years of service and a result of EPTS, non-service aggrevated. After discharge I filed with the VA in 2002 and they rated me finally in 2010 at 90%. They retroactivated it back to my initial filling in 2002. During the 8 year time span the ratings started out at service connected 0% in 2004, 30% in 2006, and then 90% in 2010. Each time retroactive back to initial time of filing. I skipped a ton of details because of the findings were not accurate and each time after they come back with a decision the details were more accurate with increased rating. Now the paperwork is in line.

Due to a new law passed in 2009 in reference to the MGI Bill now called the Post 911 GI Bill I filled out paperwork for eligibility. I was told that I was not eligible due to my DD-214 not stating that I was discharged for a service connected disability. My DD-214 states EPTS. So I initially found out about the BCNR and today found out about the PBR avenues.

My questions are as follows:

1. What is the purpose for the BCNR and PBR? Meaning does the BCNR only change the hardcopy documentation such as the DD-214 without being elibible for other benefits such as TRICARE etc.... I personally would like the TRICARE option considering it would allow me further avenues for my diagnosis' which have become stagnant with the VA.

2. If I file a PBR I hear that it opens the person up for compensatible benefits along with other benefits verses the BCNR. Is that true?

3. If the PBR awards a disability percentage rating how does that affect the VA rating?

4. Can you file for a BCNR and PBR without legal representation?

5. Would it be best to pay for the knowledge of legal representation?
 
I'm not sure what the PBR you're referring to is, or what they can do to change your records. Given the dates and circumstances, I believe that your only option to change your EPTS discharge to a medical discharge or retirement is the BCNR.

Essentially, the BCNR creates fiction. If it orders your records corrected to show that you were, say, discharged for physical unfitness rated 20 percent disabled, then your discharge orders and DD Form 214 would both be amended. Those documents would then be forwarded to finance which will pay you the appropriate severance pay (as if it was calculated and paid at the time of your discharge).

You do not have to have legal representation to apply to the BCNR. However, you may want to consider retaining counsel if this is important to you. The BCNR is not bound by VA rating decisions, so the fact that the VA rated you does not by any means indicate that the BCNR would approve your request. And with BCNR cases, you can only request reconsideration once, and only then if you have new evidence or argument.
 
What I meant by PBR was PDBR. The law that allows veterans with a nonrated PEB from military who was discharged between Sept 11, 2001 and Dec 31st, 2009.
 
The PDBR will reassess the accuracy and fairness of the combined disability ratings assigned to service members who were discharged as unfit for continued military service by the military departments with a combined disability rating of 20 percent or less, and were not found to be eligible for retirement. You were discharged due to an EPTS medical condition. You were not discharged with severance pay due to physical unfitness. You are not eligible to be considered by the PDBR.
 
Loethar78 said:
Ok then what is the board referred to in the following post?

http://www.pebforum.com/site/threads/disability-review-board-10-usc-1554.11495/

My situation directly parallels the one discussed in this forum posting.
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Thats my case and you are correct Ed is just thinking of 1554(A).
You need to read 1554 which states you have a 15 years to apply. Yes you are eligible for a Disability Review Board with an EPTS rating.
I was in D.C. for my DRB February 29th, 2012 with an EPTS discharge.

I sent a letter to the Navy requesting this board. first time my letter was returned telling me to apply to board of corrections. I called and talked to lots of people until I finally got the head lawyer for the council of review boards. I faxed him the letter directly requesting a 1554 DRB and he made sure I got a formal hearing.

I requested a formal DRB with Mike Parkers help (maparker). If you are serious contact Mike Parker. He did so much work and asked for nothing in return. I can only imagine how much time he spent on my case. He even was at my hearing, I could not find a lawyer so he got a lawyer to represent me, and brought another lawyer with him to my hearing.
 
This is my letter I sent requesting the board.

I am requesting a Formal Disability Review Board under 10 USC 1554. I was discharged from the United States Marine Corps on December 31, 2003 upon the Physical Evaluation Board’s (PEB) determination that my disability existed prior to service (EPTS). This decision was based on blood work that discovered a disease (HNPP) for which I had no prior knowledge of before entering the United States Marine Corps. The PEB decision states that, "The disability was not service aggravated," for which I believe is an injustice. Documentation from the Medical Evaluation Board (MEB) states that my injuries incurred after using my backpack and rifle. Two months before my discharge, I received a physical from the Veterans Affairs (VA). The VA reviewed the MEB findings and, along with the results from the physical, determined that "neither conditions exited prior to service," and I was awarded 40% service connected disability. In my military medical records there is a signature from my Commanding Officer and medical representative stating that the “injury incurred in the line of duty.” The United States Marine Corps is notorious for its vigorous training. I served my country and subsequently sustained injury. It has been eight years since my discharge and I am still suffering from nerve damage in both of my arms that I incurred during my service. My civilian life, prior to service, in no way contributed to the nerve damage I sustained during active duty. Therefore, I request a review of my discharge and hope you concur that my injuries were sustained during active duty and that I am entitled to disability retirement with pay.
 
I appreciate your response Ikory ... I was beginning to wonder if there was something I had missed within that post and during a conversation with a lawyer earlier today which informed me of the PBR option.
 
No problem. I joined this forum as well because I was denied the post 9/11 GI bill. Nobody knows about the 1554 DRB, but everyone knows about the PDRB 1554(a). Keep us updated and happy to answer any questions.
 
ikory said:
No problem. I joined this forum as well because I was denied the post 9/11 GI bill. Nobody knows about the 1554 DRB, but everyone knows about the PDRB 1554(a). Keep us updated and happy to answer any questions.
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I am still wondering my previous questions which I also know it has been a small amount of time since I have posted. I am just sure of which avenue to take that would be the most beneficial. I am dying to get out of the VA healthcare system and would like to take progressive movement forward in either a stagnation of my diagnosis or a solution. My main concern started off as the Post 9/11 denial but now is also wondering the best avenue for health insurance as well if possible. The compensatible aspect is secondary. I just fear that as more time goes by if I leave my status as the same as it is there will be a possibility of future benefits that I will not be entitled to for the same reasons.

Did your DRB go in your favor and did it reverse the initial Post 9/11 denial?
 
Loethar78 said:
I am still wondering my previous questions which I also know it has been a small amount of time since I have posted. I am just sure of which avenue to take that would be the most beneficial. I am dying to get out of the VA healthcare system and would like to take progressive movement forward in either a stagnation of my diagnosis or a solution. My main concern started off as the Post 9/11 denial but now is also wondering the best avenue for health insurance as well if possible. The compensatible aspect is secondary. I just fear that as more time goes by if I leave my status as the same as it is there will be a possibility of future benefits that I will not be entitled to for the same reasons.

Did your DRB go in your favor and did it reverse the initial Post 9/11 denial?
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I am still awaiting the outcome I think I am on day 54 now. If the Formal DRB does not agree with the evidence my plan is to go to the board of corrections. I am also wondering if the DRB does not agree with me and does not answer direct questions that we asked; such as the medical principle, perhaps some type of legal action could be taken to get them to answer those questions. Court has a 6 year statute of limitations from discharge so I dont know if its possible to force a court to make the navy do a DRB correctly.

I was told the Board of corrections is more like the supreme court of military justice so that would be my next step after the DRB.

I am also dying to get out of the V.A. healthcare system which does not cover my family. I really want tricare health insurance. Even if the military would rate me 40% the V.A. still pays more so it is not about compensation. I really want the military to just admit that it was service aggravated, and not EPTS. Which would give me back some honor.
 
Yeah, I hear ya. Some of the methodology in the PEBs really need to be examined and reviewed within the military. I read the letter in the link I posted earlier and I was like wow that is the exact same thing just some circumstances are different. They would tell me they reached their decision based upon things which was never clarified except by stating accepted medical principles. Um what is that....anyone can make up something and say its an accepted medical principle.

Ever since I was discharged I have been infuriated at how it was handled. During the informal and formal PEBs while on active duty I had 3 jag officers which I see now was a total mistake. I had 3 because of the amount of time that had passed. Then in the end they stated that my appeal letter didn't meet the criteria for an appeal which was clearly defined within the appeal letter.

Upon my discharge I thought the only avenue I had was through the VA. I didn't know until 2011 that I could have had my PEBs reviewed after discharge. Taking 4 years to even get into the VA system and then another 4 years to get everything straightened out was mentally exhausting. Not only that there is absolutely no progressive movement forward in properly diagnosing my condition or any sort of treatment process. All I really do now is go back to the VA every six months to see how my condition has progressed.

I do feel your pain about regaining some honor. It's a shame that we voluntarily sacrifice our lives and the red tape we have to contend with is insane. I think its sad that because of a 60 day loop hole window that I am not eligible for the Post 9/11 GI Bill. How is it that my time in service warrants less benefits than others.

I wish you luck in your case. It looks quite compelling and definately a step in the right direction.
 
GOOD LUCK TO BOTH OF YOU BROTHERS ;)

I agree that you should Private Message maparker.
 
ikory said:
Thats my case and you are correct Ed is just thinking of 1554(A).
You need to read 1554 which states you have a 15 years to apply. Yes you are eligible for a Disability Review Board with an EPTS rating.
I was in D.C. for my DRB February 29th, 2012 with an EPTS discharge.

I sent a letter to the Navy requesting this board. first time my letter was returned telling me to apply to board of corrections. I called and talked to lots of people until I finally got the head lawyer for the council of review boards. I faxed him the letter directly requesting a 1554 DRB and he made sure I got a formal hearing.

I requested a formal DRB with Mike Parkers help (maparker). If you are serious contact Mike Parker. He did so much work and asked for nothing in return. I can only imagine how much time he spent on my case. He even was at my hearing, I could not find a lawyer so he got a lawyer to represent me, and brought another lawyer with him to my hearing.
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I stand corrected. I've never heard of that board and I was part of the Army Review Boards Agency while I was with the ABCMR. Interesting . . .
 
Ed Mercanti said:
I stand corrected. I've never heard of that board and I was part of the Army Review Boards Agency while I was with the ABCMR. Interesting . . .
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Yeah to my understanding it was only for officers until last year. Someone finally had it changed for enlisted service members as well. When you read about the 1554 board everything still says its an ODRB(Officer Disability Review Board). When I called the Navy I talked to lawyers, officers, etc. Nobody heard of the DRB and was told to go elsewhere. I finally was transferred to the Head lawyer who was the only person who has ever heard of the board. He also made it clear that he has never once heard of anyone using this board. It is more like a secret board that nobody advertises.
 
First, you cannot go to the PDBR because you were never given a disability rating by a PEB. Rather your unfitting condition was deemed EPTS and you were given a “no rating” and separated w/o benefits.
You can indeed go to the Disability Review Board and I recommend you do. However, in order to get disability retirement, you would need to demonstrate that your unfitting condition should have been rated at 30% per the VASRD at the time of separation. Since the VA rated it a 0% initially, you will likely not be successful on this front.
However, if the Disability Review Board finds that the condition was not EPTS, that should help fix the GI Bill issue. The fact the VA service connected the condition is compelling evidence the PEB EPTS finding was erroneous. Send ikory a PM and ask him to share the statement we wrote for his Disability Review Board. You should be able to use many of the same arguments for your case.
If the Disability Review Board finds you should have been medically separated with a rating of less than 30%, you will receive severance pay which will then be offset by VA compensation for the same condition. It will be a financial wash as whatever they give you in severance pay will be reduced from future VA compensation.

Ed,

The Disability Review Board has been around since the 1940’s. In 2006, I requested such a board for an officer via ARBA. ARBA was flat footed on the board but granted us one upon reading the law. I wrote about the Disability Review board in my DES Outrage 7. As a result, Congress expanded the Disability Review Board in the 2011 NDAA to enlisted members. ARBA recently added the Disability Review Board to their website under disability appeal options. Earlier this year ARBA stated it was only for officers but they have since corrected their website to reflect that enlisted can file as well.
http://arba.army.pentagon.mil/Disability-Appeals.cfm

Mike
 
maparker said:
First, you cannot go to the PDBR because you were never given a disability rating by a PEB. Rather your unfitting condition was deemed EPTS and you were given a “no rating” and separated w/o benefits.
You can indeed go to the Disability Review Board and I recommend you do. However, in order to get disability retirement, you would need to demonstrate that your unfitting condition should have been rated at 30% per the VASRD at the time of separation. Since the VA rated it a 0% initially, you will likely not be successful on this front.
However, if the Disability Review Board finds that the condition was not EPTS, that should help fix the GI Bill issue. The fact the VA service connected the condition is compelling evidence the PEB EPTS finding was erroneous. Send ikory a PM and ask him to share the statement we wrote for his Disability Review Board. You should be able to use many of the same arguments for your case.
If the Disability Review Board finds you should have been medically separated with a rating of less than 30%, you will receive severance pay which will then be offset by VA compensation for the same condition. It will be a financial wash as whatever they give you in severance pay will be reduced from future VA compensation.

Ed,

The Disability Review Board has been around since the 1940’s. In 2006, I requested such a board for an officer via ARBA. ARBA was flat footed on the board but granted us one upon reading the law. I wrote about the Disability Review board in my DES Outrage 7. As a result, Congress expanded the Disability Review Board in the 2011 NDAA to enlisted members. ARBA recently added the Disability Review Board to their website under disability appeal options. Earlier this year ARBA stated it was only for officers but they have since corrected their website to reflect that enlisted can file as well.
http://arba.army.pentagon.mil/Disability-Appeals.cfm

Mike
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Thank you for the information Mike. I became a member of this forum to provide what assistance I could to its members. However, I have been pleasantly surprised to learn things I didn't know. You and Jason, as well as other notable members of the forum, are very knowledgeable. I am aware that as an analyst or team chief on a BCMR our knowledge base is somewhat diluted by the scope of our responsibilities. The Civil War, WWI, WWII, the Korean War, etc. Awards and decorations, court-martials, bonuses, special pays, service calculations, etc. The Enlisted Reserve, Woman's Army Corps, Philippine Scouts, Merchant Marine (WWII). Its a pleasure to learn from people who are specialists in their field.

Ed
 
Hey Mike,

In your previous reply you stated, "However, in order to get disability retirement, you would need to demonstrate that your unfitting condition should have been rated at 30% per the VASRD at the time of separation. Since the VA rated it a 0% initially, you will likely not be successful on this front." My question is do you mean that the probability of getting my DD214 changes is less because of that finding? If so, does the fact that the final VA determination of 90% retro'd back to date of discharge have an effect?
 
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