Worth fighting?

I would appreciate any insight anyone might have into the following.

Recently received my IPEB findings with concluded Unfit with a rating of 0% for:
Facet Syndrome: Lumbar (0000)
Discogenic Pain Secondary to Degenerative Disc Disease (0000)
Herniated Intervertebral Disc L4-L5 (5539)

I am a Marine Corps officer with 10 years service. I've read just about every thread at this site and know I'm being low-balled but don't know if there is enough to make the magical 30%. I already have a job lined up that exceeds my current pay and don't want to pursue a losing battle.

I believe I should have been rated for
Intervertebral Disc Syndrome (5243) or General (5235-5243)
and Arthritis, Degenerative (5003)
But according to the definitions of both, I don't know if there is enough evidence to support. My "incapacitating" events are just me lying in a recliner, sofa, or bed unable to deal with the pain level caused by my lower back. If you add up the hours spent in this condition, it easily exceeds 2 weeks a year (20%), but none of it occurs by order of a doctor or under direct care of a doctor. Just fact of life coping. My MRI, CT scan, and Xrays point at arthrosis in my facet joints and my bottom two discs (L4-L5 & L5-S1) ruptured and have since dried out. I tried everything but surgery (not a viable option according to Neurosurgeons) over a three year period but without any luck. I have constant pain that steroids and pharma have not helped.

My questions are:
Can IDS and Arthritis be rated separately and thus add for a higher rating?
Can incapacitating events be substantiated by witnesses, albeit family members, or does your medical record have to contain documentation?
Does the Navy have a rating for pain like the Army's 10-20%?
Should I request a formal PEB and delay my new job by 3-4 months?

Thanks in advance for any insight shared,
PD
 
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Did they conduct range of motion studies for these conditions and, if so, what were the results?

Mike
 
Mike,

Thanks for responding. The PT submitted an addendum that said full range of motion, but he never did a recent test, if any. My chiropractor did a ROM today and it was 210 combined.

PD
 
PD; my question to you would be what do you stand to lose if you take your arguments to the Formal Board? You were rated at 0%. It can only go up from there. The only thing it adds is time. Will the job you have lined up still be there a couple months down the road? If so, it seems like it might be in your best interest to go to the formal, and do your best to get more of these symptoms documented in the mean time.
 
Also; keep in mind of you think you will be rated under 30% either way, the severance pay will not change.
 
pdetar,
Welcome!


Can IDS and Arthritis be rated separately and thus add for a higher rating?
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From Code 5243:
"Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment."
So, if the above criteria are met, the answer is yes.

Can incapacitating events be substantiated by witnesses, albeit family members, or does your medical record have to contain documentation?
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From Code 5243:
"Note (1): For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician."
Given the above note, I would say they will not accept such testimony.

Does the Navy have a rating for pain like the Army's 10-20%?
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No.

Should I request a formal PEB and delay my new job by 3-4 months?
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I think you have to decide this for yourself. Seems to me there are three important issues. 1) They can reduce your award at the formal, or come to any other permissible decision without regard to the IPEB's findings. 2) From a DoD compensation point of view, 0%, 10%, and 20% result in the same compensation from DoD. 3) How much of an inconvenience is the delay and will it impact your follow on civilian job. I would weigh each of these and then decide.

If the ROM exam was combined thoracolumbar, that appears to indicate a 10% rating. Still, I think it is hard to know without reviewing your medical records if there is some error or other basis for a higher rating. What did the IPEB give for a rationale for the rating?
 
Hi pd,

Make sure you file a claim with the VA! Also, you can accept the findings of the IPEB and immediately file an application with the BCMR (before you get off active duty), disputing the percentage awarded. Of course, you need to thoroughly read the criteria in the VASRD for your condition - and then, you have to have documentation that supports a higher rating. Do lots of research!! You would be surprised at the amount of information that you can track down on the internet. Make sure you google "disability discharges" and read the recent case law.

Good luck!
 
Sheila,

You might be surprised how much of that information is already here. :D

Welcome to the forum!
 
Two points:

First, if you accept the IPEBs findings, be aware that there are issues with waiver of your claims. You can work around this in some cases, but be aware of the issue. Also, BCMR/BCNR claims can't be filed until the "injury" you complain of occurs (which usually means your discharge at a lower rating than appropriate).
 
me personally, i'm in the mindset that i'm gonna fight it 2 the formal, no matter what. right now i'm i just finished my MEB and i'm awaiting my IPEB results. also keep in mind if, in barnie terms, if u come out of the formal w/let's say a 20% TRDL, remember that u will get 50% until u basically r fixed or r rated perminante. like i said earlier i'm in the beginning stages, but i filed for the VA as soon as i got injured through the DAV. i would highly suggest this, 2 get the ball rolling. what it's also going 2 come down 2 is if fighting it is going to jepordize yor job, hopefully it won't. i would highly suggest start reasearching past thread here. i'll look for one's that apply to u and add them here. hope this helps.
 
look @ it this way, if u do go forward the can't lower it right? 0%-0%=0%:)
also 2 second guy's post. and i'm not being biased or anything. i think you could google the DES, DOD and VA regs., AFI's, etc. all day long and it would take u days to find the info. that's here.
i could'nt even imagine going through my case and not using this site. i'd be more crazy than i already am:eek: i'm babbeling now
 
Ahh your killing me with that yankees crap!! When was the last time they won the world series? I mean were your kids even born yet?

Freddy
 
I hate the Yanks but 2000 is when they last won the series. That might be 8 yrs ago but its still alot sooners then alot of teams like the CUBIES we haven't won since 1907 i think HA.
 
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