Appeal PDBR decision through US Federal Court of Appeals?

teamwinklerfl

teamwinklerfl

PEB Forum Regular Member
Registered Member
I made a mistake and let my VSO process my PDBR request before my PTSD claim was complete with the VA. I was subsequently denied PDBR because the board did not have a new rating to go by. I finally received notice from the VA that I am now rated at 30% for PTSD and would like to take my case to whomever will listen. Is there no way for me to submit a new request with this information to the PDBR? If I can't do that, do you know where I could find a lawyer to process my claim with the US Court of Federal Appeals? I don't want to wait on this.
 
Were you originally found unfit for PTSD? Were you separated for unfitting PTSD at less than 30%?

Mike
 
Mike,

I have attached the original TDRL form, the separation form, the response from the original PDBR and the VA claim that was completed AFTER the PDBR completion. I'm wondering if there is any way to try again. I have read a TON of PDBR cases on the Air Force website and the majority of the ones that were changed from separation to retirements were for PTSD above 30%, which I am now rated at.

I was in a really bad place when the TDRL, separation happened and I was so disillusioned with the whole system. My mindset at the time was that the Marine Corps didn't think I had PTSD and are separating me, so I must be fine. I stopped seeing a counselor and completely turned my back on the VA....it was only a few years later, that my wife urged me to go back and talk to someone because my issues never went away. Luckily, I found a great counselor who I have been seeing regularly, he has urged me to keep trying for retirement and I can't give up again just because something is frustrating me.

I really appreciate your time.
 

Attachments

Your 30% VA rating came well after you were separated. It appears at the time of separation both the PEB and VA rated your unfitting conditions at less than 30%. What is your argument that at the time of separation you had unfitting conditions that rated 30% or more per the VASRD? You need to make that argument in order to be able to be successful. You can take the issues that were not covered in your MEB to the BCNR and argue they were also unfitting. I will defer to Jason as to whether or not you can still take any issue to federal court given the time that has elapsed.

Mike
 
At the time of separation, I was diagnosed as 10% with a mood disorder after about 10 minutes (total) at a C&P exam. The person that "examined" me never asked me any questions about my service or what was going on with me and I wasn't aware of what PTSD was. I was going through a divorce at the time and I wasn't seeking the help that I needed. Not until I got my life somewhat together, did I realize I had a serious problem that was most likely PTSD. Thank God I was diagnosed by the VA after extensive counseling, that is when I got the 30% rating. Unfortunately, I should have waited for that rating to apply for the PDBR. Should I go to the BCNR to ask for the PTSD/ Mood Disorder to be considered unfitting?

I also think that the contention that the disorder wasn't a result from combat....the PTSD/ Mood Disorder was directly a result of my time in Iraq, I didn't have those issues prior to my deployment. I not looking for more money, I want to be a "retired" Marine. I would have stayed in the service until retirement if it hadn't been for my PTSD ( I and I'm willing to follow any lead to make that happen.)
 
The question is, since you were rated at 30% after your original rating from the VA, should you have received a retirement from the Marines? From what I understand, Mike stated it correctly. You should apply to the BCNR to upgrade you discharge to a retirement. From my advice, you should seek legal counsel when approaching the BCNR. Good luck!

Frank,
 
Thanks, I have no idea where to find a lawyer who does BCNR cases, that would be my next step, though.
 
teamwinklerfl said:
Thanks, I have no idea where to find a lawyer who does BCNR cases, that would be my next step, though.
Click to expand...

Have you tried contacting Jason Perry, the guy that runs this web site?
Jason Perry took my case when I went through the disability process while on Active Duty and I rec'd a favorable outcome.

You might private message him and see if he does legal representation for BCNR cases. If he does, I'd snatch him up because he really knows this kind of law and has a lot of experience under his belt.

nwlivewire
 
teamwinklerfl said:
I made a mistake and let my VSO process my PDBR request before my PTSD claim was complete with the VA. I was subsequently denied PDBR because the board did not have a new rating to go by. I finally received notice from the VA that I am now rated at 30% for PTSD and would like to take my case to whomever will listen. Is there no way for me to submit a new request with this information to the PDBR? If I can't do that, do you know where I could find a lawyer to process my claim with the US Court of Federal Appeals? I don't want to wait on this.
Click to expand...

nwlivewire said:
Have you tried contacting Jason Perry, the guy that runs this web site?
Jason Perry took my case when I went through the disability process while on Active Duty and I rec'd a favorable outcome.

You might private message him and see if he does legal representation for BCNR cases. If he does, I'd snatch him up because he really knows this kind of law and has a lot of experience under his belt.

nwlivewire
Click to expand...

Welcome to the PEB Forum! :)

Hmm, @teamwinklerfl, were you able to obtain legal representation in order to potentially continue your pursuit for correction of your military records at this point in time; just out of curiosity?

Thus, I quite often comment that "possessing well-informed knowledge is truly a powerful equalizer."

Best Wishes!
 
A few points/comments:
1) An initial judicial appeal would be filed in the US Court of Federal Claims, not the Court of Appeals for the Federal Circuit (which is the next higher court above the Court of Federal Claims and just below the Supreme Court).
2) It is not clear that you could go to the BCNR after going to the PDBR. Normally, you cannot. However, there is some question when there are issues that are not raised/addressed in the PDBR case that may permit BCNR review.
3) Looks to me like your statute of limitations for court will run out on April 2, 2015 (six years after your permanent separation). Keep this in mind.
4) There are several complicated issues in your case, both substantive and procedural. Both will likely need to be addressed or at least considered to maximize likelihood of success.
 
Gentlemen,

Thank you for the information thus far, it's nice to know there's a forum that exists to discuss these types of issues. Jason, based on the complexity of my situation, do you recommend that I find myself a lawyer? I do realize that the clock is ticking on my case and I will jump at the opportunity to address the issues, I just have no idea who to contact about it. I understand there is likely a cost for representation and I'm fully willing to pay to be retired.

The bottom line for me, is that if not for my injuries and PTSD, I would still be in the Marines today. I had hope that the last examination from my PEB that stated by the doctor, that I should be continued on retirement would hold some weight with a board/ judge somewhere.
 
Unfortunately, the fact the VA rated you 30% in 2014 is irrelevant. You must demonstrate you were required to be rated 30%+ for unfitting conditions in 2009. Can you do that? What part of the PDBR decision was wrong? To be sucessful, you have to show why the PDBR decision was wrong in context of law and regulation.

Mike
 
teamwinklerfl said:
Gentlemen,

Thank you for the information thus far, it's nice to know there's a forum that exists to discuss these types of issues. Jason, based on the complexity of my situation, do you recommend that I find myself a lawyer? I do realize that the clock is ticking on my case and I will jump at the opportunity to address the issues, I just have no idea who to contact about it. I understand there is likely a cost for representation and I'm fully willing to pay to be retired.

The bottom line for me, is that if not for my injuries and PTSD, I would still be in the Marines today. I had hope that the last examination from my PEB that stated by the doctor, that I should be continued on retirement would hold some weight with a board/ judge somewhere.
Click to expand...
http://www.peblawyer.com/attorney_profile.html

The guy who is an excellent lawyer for this - his name is Jason Perry - the same guy that has responded to your thread on this post.

Try this website for further contact information....


Time is of the essence....http://www.peblawyer.com/attorney_profile.html
V/R,
nwlivewire
 
teamwinklerfl said:
Jason, based on the complexity of my situation, do you recommend that I find myself a lawyer? I do realize that the clock is ticking on my case and I will jump at the opportunity to address the issues, I just have no idea who to contact about it. I understand there is likely a cost for representation and I'm fully willing to pay to be retired.
Click to expand...

Without weighing in on the merits, it sounds like you would benefit from legal representation. I don't know that you would be able to progress or succeed with an appeal without qualified legal assistance. A key issue that would need to be addressed is, as maparker posted, whether your condition(s) was/were unfitting with a rating of at least 30% at the time of your separation.
 
maparker said:
Were you originally found unfit for PTSD? Were you separated for unfitting PTSD at less than 30%?

Mike
Click to expand...

I was reading this post today and I have some concerns regarding my denial of the PDBR. I have my paperwork from all the VA Letters and as I reviewed my documents they put my PTSD to the time I was released as well as my other findings, in the PDBR they never included that or another ailment I have, I am lost and so confused why they choose only 2 things and never considered the other 2 that I have, also not to mention I am 100 permanent and total from PTSD so that is the confusing part, can you help me?
 
I'm a little confused reading your post; specifically, what did the pdbr rate you at and what was their justification. Second, how many conditions did you have on your PEB that were unfitting and did you specifically request for the pdbr to review all of them or just PTSD? Was your VA ratings that you received from an exam conducted within 12 months of your separation from the service? Did the pdbr place you on a constructive tdrl 50% status for the six month period following your separation and than constructively remove you at lower than 30%? If you can answer each one of these questions for me I will let you know if you have a case in federal court. I'm attaching a federal judge 2016 decision that ordered DOD to permanently retire a soldier at 50% because placing a veteran on constructive tdrl and than constructively separating him took away his due process that was supposed to be afforded by law via the tdrl. Please respond so I know you got this. I feel like it's. A waste of my time if people blow me off. I can get you info on resources that will result in pro Bono representation from legal firms that know what they are doing.
 

Attachments

Also, the pdbr can only use VA evidence if it accurately reflects the severity of your condition at the time of separation from service but specifically they should only consider VA evidence collected within 12 months of your seaparations. If there is a big disparity in your VA ratings and the pdbr recommendation or they decided to place heavy probative value on anything over 12 months, they are basically have you doing the 10th mountain climb to glory bend over and touch your toes and get ready for another serving 18th airborne corps red headed step child stretch. Let me know. Disregarding all or some medical evidence by the pdbr has also been ruled in federal court in the Timothy j hatmaker v. The us case where a judge slapped the pdbr with a remand of his case and a strict warning. Let me know by replying to my prior post
 
TOT31 said:
I'm a little confused reading your post; specifically, what did the pdbr rate you at and what was their justification. Second, how many conditions did you have on your PEB that were unfitting and did you specifically request for the pdbr to review all of them or just PTSD? Was your VA ratings that you received from an exam conducted within 12 months of your separation from the service? Did the pdbr place you on a constructive tdrl 50% status for the six month period following your separation and than constructively remove you at lower than 30%? If you can answer each one of these questions for me I will let you know if you have a case in federal court. I'm attaching a federal judge 2016 decision that ordered DOD to permanently retire a soldier at 50% because placing a veteran on constructive tdrl and than constructively separating him took away his due process that was supposed to be afforded by law via the tdrl. Please respond so I know you got this. I feel like it's. A waste of my time if people blow me off. I can get you info on resources that will result in pro Bono representation from legal firms that know what they are doing.
Click to expand...


I was rated at 30% I then moved to 60% and I am 100% with PTSD I also have other issues with back and neck and the tendinitis but my records show 30% the date of the discharge from the Army. And in the PDBR there is no mention of this condition
 
TOT31 said:
Also, the pdbr can only use VA evidence if it accurately reflects the severity of your condition at the time of separation from service but specifically they should only consider VA evidence collected within 12 months of your seaparations. If there is a big disparity in your VA ratings and the pdbr recommendation or they decided to place heavy probative value on anything over 12 months, they are basically have you doing the 10th mountain climb to glory bend over and touch your toes and get ready for another serving 18th airborne corps red headed step child stretch. Let me know. Disregarding all or some medical evidence by the pdbr has also been ruled in federal court in the Timothy j hatmaker v. The us case where a judge slapped the pdbr with a remand of his case and a strict warning. Let me know by replying to my prior post
Click to expand...
Yeah that is the problem I was over 30% in a year with PTSD and the findings in the PDBR never even mentioned this in the case as I even sent every board I went to and the findings and with all the dates. I tried to call Jason everyone talks about because I think I have a good case and I do not want to waste time and I just need to know where I go and what my options are, I am new to all this and after the two years of writing for a result that never included my condition that is stated service connected never was mentioned. So frustrated and confused!!!!
 
Sbliss79 said:
Yeah that is the problem I was over 30% in a year with PTSD and the findings in the PDBR never even mentioned this in the case as I even sent every board I went to and the findings and with all the dates. I tried to call Jason everyone talks about because I think I have a good case and I do not want to waste time and I just need to know where I go and what my options are, I am new to all this and after the two years of writing for a result that never included my condition that is stated service connected never was mentioned. So frustrated and confused!!!!
Click to expand...
Check your inbox sbliss79. I sent you a message
 
You must log in or register to reply here.
Top