Wondering if I have a chance?

T

telenbaum

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I deployed to Iraq (2006) and while in Kuwait as a 63B Mechanic (SGT/E-5) my right foot was crushed by a military trailer → Lisfranc fracture/dislocation, ORIF w/ screws. Med-evacuated and went through MEB/PEB in 2007.

MEB: Found unfit (AR 40-501).
PEB: Rated 20 % “chronic pain” under the old 2005 Pain Policy(5003 5099) → separated w/ severance instead of retirement.
VA today: Rates same injury ≈ 50 % combined (30 % foot + 10 % ankle + 10 % + 10 % painful scars = ≈ 49 % → 50 %).

My argument: PEB violated AR 635-40 & VASRD § 4.71a by using a pain code instead of functional loss (5284 foot, 5271 ankle, 7804 scars). Even conservative math ≥ 30 % (retirement); if the foot is “severe” (40 %) it hits ≈ 60 %.
Should I file an ABCMR appeal for Permanent Disability Retirement (10 U.S.C. § 1201)?

Legal support:
– AR 635-40 / VASRD – rate by function, not pain
– DoDI 1332.18 (2014) – rate all unfitting conditions
– Sissel v. Wormuth (2023) – must rate each condition contributing to unfitness
 
telenbaum said:
I deployed to Iraq (2006) and while in Kuwait as a 63B Mechanic (SGT/E-5) my right foot was crushed by a military trailer → Lisfranc fracture/dislocation, ORIF w/ screws. Med-evacuated and went through MEB/PEB in 2007.

MEB: Found unfit (AR 40-501).
PEB: Rated 20 % “chronic pain” under the old 2005 Pain Policy(5003 5099) → separated w/ severance instead of retirement.
VA today: Rates same injury ≈ 50 % combined (30 % foot + 10 % ankle + 10 % + 10 % painful scars = ≈ 49 % → 50 %).

My argument: PEB violated AR 635-40 & VASRD § 4.71a by using a pain code instead of functional loss (5284 foot, 5271 ankle, 7804 scars). Even conservative math ≥ 30 % (retirement); if the foot is “severe” (40 %) it hits ≈ 60 %.
Should I file an ABCMR appeal for Permanent Disability Retirement (10 U.S.C. § 1201)?

Legal support:
– AR 635-40 / VASRD – rate by function, not pain
– DoDI 1332.18 (2014) – rate all unfitting conditions
– Sissel v. Wormuth (2023) – must rate each condition contributing to unfitness
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You can. it will take years though. Also, understand you are fighting for Tricare mainly. Any chapter 61 pension earned will be offset by any VA compensation you receive. So your net pay wold be the same as now. There is a possibility for a little more compensation but it will be capped at the value of your earned pension. So being an E5 you would need to take the highest 36 months of your pay back when you were separated and then divide it by 36. Lets say its $2,600 which was the base pay in 2006 and you had 6 years in. 6 years times 2.5% = 15% times $2,600 = $390 a month. So that's the additional amount you could get if retroactive medically retired and later on approved for CRSC. With all the laws regarding CRSC backpay being in limbo I would not count on any retro CRSC and then be happily surprised if you do get some backpay.

I give this information because Soldiers sometimes have unrealistic expectations on what winning their ABCMR case looks like. Winning for you if you had 6 years in service and were retroactive medically retired would mean Tricare and in today's dollars roughly an extra $500 a month if approved for CRSC. If not approved for CRSC then only getting Tricare for you and the family.
 
I could be wrong but I thought there were 2 formulas to calculate the retirement and that they paid the higher of the 2. High-3 x 2.5% x years. Or high-3 x disability %. I could be mistaken or read something that was not applicable to my time frame and so the latter doesn't apply.
The TRICARE is the reason I would apply but crsc back pay could be a massive bonus if I calculated it correctly.
 
telenbaum said:
I could be wrong but I thought there were 2 formulas to calculate the retirement and that they paid the higher of the 2. High-3 x 2.5% x years. Or high-3 x disability %. I could be mistaken or read something that was not applicable to my time frame and so the latter doesn't apply.
The TRICARE is the reason I would apply but crsc back pay could be a massive bonus if I calculated it correctly.
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So for anyone that doesn't reach 20 years of service the law states that any VA compensation must offset a chapter 61 pension. Tricare alone is worth it but I wanted to give you an idea of the gain. Since you have gotten VA compensation since the time you got out there won't be any extra income from medically retiring. So its all about Tricare & maybe CRSC if approved after retro retirement.
 
Provis said:
So for anyone that doesn't reach 20 years of service the law states that any VA compensation must offset a chapter 61 pension. Tricare alone is worth it but I wanted to give you an idea of the gain. Since you have gotten VA compensation since the time you got out there won't be any extra income from medically retiring. So its all about Tricare & maybe CRSC if approved after retro retirement.
Click to expand...
I would definitely apply for crsc since my injuries occurred on deployment. Thank you for your insight.
 
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