Confused about Potential Rating...PEBLO no help.

P

prfctasillevrbe

PEB Forum Regular Member
PEB Forum Veteran
My husband started the med board in February. He's been having back problems for some time. He found out he has a severely damaged disc which they wrote down as a degenerative disc disease I believe. From the moment he walked into his PEBLO's office she's had him pegged as getting 20% no more, no less. She's really irritating. I'm a little confused because I've been reading about how they rate things and we got the results from his range of motion back. His forward flexion results were 29 degrees after three reps. and it says he started feeling pain at 19 degrees. It says PROM is 40 degrees. Then it had something beside it, it was a 2...his PEBLO says this means the reason his forward flexion was only 29 degrees is because of pain. She again said...because of this he will only get 20%. According to what I've been reading it looks like the rating should fall at 40%. I'm really confused, really stressed and so nervous for his results to come back. Is it really true that because pain caused his forward flexion to be 29 degrees he will not get the rating we feel he deserves? She said if it was a mechanical problem he would get the 40 but since it's pain no. I'm 6 weeks pregnant and really don't need to be stressing about this...any feedback that anyone can give me would be greatly appreciated. Thank you!
Crystal
 
Not sure how your PEBLO can "guess-amate" with any such accuracy? In fact I don't think a PEBLO should throw any numbers around.
 
Crystal,

The PEBLO has no authority or standing to be telling you what the rating would be. She is speculating at best and worse overstepping her role. The Narrative Summary will be very important in detailing you husband's condition for the IPEB, along with Xrays, ROM measurement and Cmmander's letter. Remember that you will have the opportunity to request a formal PEB if the IPEB is not favorable. I'm not a spine expert but there are a few members of this forum who have had back issues and perhaps they will comment. I know it is hard to not stress but try to keep positive and things will work out. Please take care of yourself and and your baby. We're all in your corner

fdm
 
Crystal,

Welcome to the forum and sorry to hear of your husband's condition. There are several other members/moderators on this forum who have a better understanding of the terminology used in spinal conditions. Hopefully, they chime in with some more fruitful advice. Where they are getting 40 degrees from is beyond me, as this would indicate somewhere in his flexion measurements he was within a 37.5 to 42.4 degree window (the VASRD indicates to round to nearest five degrees).

Do you know if his cervical or thoracolumbar spine (or both) were measured? The cervical spine is roughly from the base of his neck up to the skull while the thoracolumbar spine is from the base of the neck the small of the back (roughly). This may have an impact on where he falls within the rating schedule.

To echo what the others have stated, the PEBLO is has no authority (literally or figuratively) to be throwing percentages around while your case is pending.
 
Crystal,

Your husband should get 40%.

Wow, talk about a flashback! What the PEBLO is telling you is how the Army used to rate back pain (i.e., they required a mechanical limitation to rate ROM, and if someone had pain, they disregarded it). It took Congress, by the 2008 National Defense Authorization Act, to clarify that the military must use the VA Schedule (they always had to), and that any interpretation by the Court of Appeals for Veterans Claims is binding on the military. The law is clear that pain counts and must be considered in ROM evaluation.
 
Thank you to everyone who replied!!! This is just so stressful, I'm ready to get the results back and get this over with.

Carnelli53,
It was his thoracolumbar spine that they measured. And his forward flexion was 29 degrees, the 40 degrees was the PROM which is when the physical therapist pushed on my husbands back to see how far he could push him I believe.

Jason,
Thank you for your response. I just don't understand where his PEBLO get's off that she knows what the results are going to be. She keeps telling us he will not get higher than 20% because she has never seen a back injury get higher than this. When we first met her she told us she was in our corner, but it really doesn't feel like it. Honestly, all she's done for both me and my husband is stress us both out more. Sometimes I wonder where they get these PEBLO's from.

We also just found out today that his packet was sent to Ft. Lewis on the 9th, so hopefully the results will be what we expect. I'll keep everyone posted.

Thank you all so much!
Crystal
 
Jason,
They sent his PEB results down with a rating...and of course they only gave him 20%. They are justifying this by saying it falls into the 20% category due to combined motion not greater than 120 degrees. It also states that review of case files reveals that the combined range of motion more nearly approximates Soldier's overall functioning. How do we fight this? I mean I know how to appeal it and in the rating system the way we're reading it, he should get 40% because his forward flexion was only 29 degrees...but I can see where it states what they say too. He clearly falls under two ratings...so how do we fight this? Please help.
Thank you.
Crystal
 
Crystal,

Demand the formal hearing. They can't pick that lower rated criteria when he has a criteria that meets the higher rating. If they deny the higher rating at the formal, I would probably give strong consideration to filing a suit in the US Court of Federal Claims.

Best of luck, I hope they do the right thing and rate him higher.
 
Jason,
Thank you, we plan to demand the formal hearing. In your opinion would it be better for my husband to appear in person? I know they said if you demand a formal hearing you can either appear in person, or do a teleconference or a VTC. I'm just wondering if any specific one would make a difference and also in your opinion would you go with a jag appointed lawyer to represent him or pay out of pocket for one? Thanks.
Crystal
 
Okay so we met with Mr. Ball today who is the MEB Lawyer on Ft. Bliss. We found out among a few other things that his PEBLO lied to us about a few things. She told him the only way to get an issue put on the NARSUM to be rated is if he has a P3 profile. Apparently that's incorrect, which means his MEB was incorrect. He was only rated for his back when in fact he has ankle issues and migraines as well. Also apparently you have seven days after viewing the MEB to decide if you agree? We weren't told that. We were told to decide right then. I can't remember the rest of the list of things we found out we were told incorrectly. Basically we got royally screwed and we have to just hope that a lawyer will be able to fix this at a formal appeal. Pay attention to what your PEBLO tells you and double check everything, we don't want anyone else to get screwed like we did.

On another side note...this lawyer told us that even though my husband's ROM meets the criteria for a 40% rating that they don't have to give it to him, they can stick with the 20% rating because both ratings fall under the same code. He said in order for them to HAVE to choose the higher rating it needs to fall under two codes. Does anyone know if this is true? Please help we only have three days left before we have to make a decision on the appeal.

Thanks,
Crystal
 
prfctasillevrbe said:
On another side note...this lawyer told us that even though my husband's ROM meets the criteria for a 40% rating that they don't have to give it to him, they can stick with the 20% rating because both ratings fall under the same code. He said in order for them to HAVE to choose the higher rating it needs to fall under two codes. Does anyone know if this is true? Please help we only have three days left before we have to make a decision on the appeal.

Thanks,
Crystal
Click to expand...

Not true. I don't know how to explain what you are being told. Based on what you said, your husband should get 40%.
 
Jason said:
Not true. I don't know how to explain what you are being told. Based on what you said, your husband should get 40%.
Click to expand...

I have a similar question regarding my back and ROM. I recently had spinal fusion in March and am going through physical therapy. I had the bottom three vertebrae fused L4-S1. I anticipate I will be rated at 40% because I CANNOT bend at the waist. I feel like I have the Eiffel Tower in my low back due to all the rods, screws, and cages installed.

My question is: Is there anyone who knows of the Army NOT considering the back and ROM but the VA considering it? i.e., Has anyone ever had the Army throw out the back rating saying it was not considered in the fit/not-fit for duty consideration? I know the VA will consider it for Quality of Life but am a bit worried the Army might not consider it because my job is in Information Technology.

Thanks as always,
Erich
 
Just thought I'd update everyone...my husbands MEB packet will be going back up to the PEB on Wednesday. They finally fixed it and included all his other conditions (not that it matters because his other conditions are all listed under "meets retention standards").
His PEBLO says then the board will either hand us a reconsideration or set us up for a formal hearing. I'm hoping for the first but I won't hold my breath.
In the meantime while all this was going on my husband was given a TEMP profile on top of his PERM because he is now not able to do push up's either. We are going to include this with the MEB as a statement and hopefully the board will realize they rated him incorrectly. Obviously on top of the fact that he should have already received the 40% rating this will prove that his condition is getting worse. I'm crossing my fingers...though I have a feeling we'll have a fight til the end, that's what it seems like already.
Crystal
 
Also to Looking4Help,
Watch out that they don't do the same to you they did to my husband...his Forward Flexion was only 29 degrees which should have landed him a 40% rating as well but they went with the overall range of motion. This seems to be how they get you. I'm not sure if that will affect you...hopefully it doesn't and you get the rating you deserve without a fight. Best of luck.
Crystal
 
Just wanted to update everyone. We just got a call from his PEBLO today. The PEB did an informal reconsideration, my husband goes to sign the papers Monday. They gave him the 40% he deserves!! I have to say, I wasn't optimistic they'd do the right thing, but it's a weight off my shoulders that they have. I just wanted to thank everyone on here for the advice and support :) Things are looking up.
 
Congratulations! Best to you and your husband for a well earned retirement.
 
Well...his PEBLO left out the fact that it's TDRL. Does this have an effect on anything? The way his PEBLO put it, usually when you're given TDRL you end up with permanent...but I'm worried that this is the army's way of trying to screw him over again. I'm worried they're going to try to say that he's improved and take it away. Any ideas on this?
Thanks.
 
Two points. First, the minimum pay while on TDRL is at the 50% rate (or retired base pay). So, in this case, he appears to actually make more money. The second point, to which you alluded is that it is possible to later have the rating reduced. For this reason, it is important to keep in mind that near the time of the Re-evaluation, he wants to have well documented his recent condition and be aware of the criteria when he goes to be examined. If his VA rating at that time supports a high rating, then he may want to bring that evidence (the rating letter and the C&P exam would be helpful). I hope all goes smoothly!
 
Jason,
When you say be aware of the criteria what do you mean? I guess I'm just confused because I don't see how they can call his condition unstable. It hasn't been fluctuating and sometimes better, it keeps progressively getting worse. Yet they are saying that once outside of the military it will likely get better (he already doesn't do pt so it's basically the same as him being a civilian, he sits at a desk all day). His PEBLO said they usually give guys who haven't been in the service that long and aren't close to retirement TDRL BEFORE giving them permanent. Is this true? He said if Jeremy had been closer to retirement he may have got permanent right off the bat, he also said that USUALLY he sees TDRL turn into Permanent. I'm just so worried they're going to try to screw him. I felt like everything was finally over and I could relax and now I've found out it's only temporary. It's like they keep you sitting on pins and needles. They tried to screw him the first time by giving him 20%, and I'm worried the only reason he got this TDRL at 40% is because of the letter his chain of command wrote, and he won't have that at the next evaluation since he won't be in anymore.
 
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