I am hoping that someone can help me with a few questions that I have. I recently recieved my 199, 50% DOD and 60% VA (there are a tone of discrepancies with the VA that will engage them about at a different time). Nonetheless I agree with the 50% from DoD (Disqualifying condition was RSD with cervical neurostimulator implanted after a brachial artery repair x2). However, once the stim was placed it caused server restrictions on the ROM of my neck. If I move it one way other the other it shocks me, sorta like have one of those dog collars on. My neck is not even on my VA claim due to being referred to the MEB right after surgery. While I was filing out my claim documents I was still in a hard C-collar. I have the following questions: 1) What is the likelyhood of my rating for my arm to be lowered if I appeal and request my neck be added to the DoD side of the house? 2) Would it be beneficial to appeal the rating? 3) What is the likelyhood of getting a COAD packet approved? Thank you in advance.
Contemplating Appealing???
- Thread starter Carina
- Start date
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So, you are trying to get your neck found as an unfitting condition? I am not 100% in this situation, but I would think that you would need to get your PCM to write another NARSUM with your neck on it. Then it would need to be submitted somehow (maybe another MEB and IPEB?). Then the VA would have to rate on that condition. I don't think they would re-rate everything else as this is not a re-rating request. Not 100% on that either. Maybe Jason or maparker could comment on this...
Sorry I can't be too helpful, but I think that someone needs to get the conversation started on this. I just hope I am not too late.
Sorry I can't be too helpful, but I think that someone needs to get the conversation started on this. I just hope I am not too late.
thank you for your reply. I went to legal and the bottom line is that I would need to get an additonal P3 for my neck, however, when I went to ortho spine to get it they said that there is nothing physically wrong with the structure of my neck and they wouldn't write a P3. The other issue was that I never claimed in on my VA claim due to not knowing it was going to be an issue considering I was still in a hard C-collar when I filled out my documents. The problem is that due to having the cervical neurostimulator if I move my neck to the left or right even to 15 degrees I get shocked. Therefore, my neck is very stiff and the ROM had been drastically decreased. I am really not too sure on how I should pursue this. If anyone has any suggestions please let me know. I did appeal my 199 but not for the ratings but for the combat related aspect, which is confusing in and of itself. I was in a MVA on MSR tampa in iraq when my vehicle was hit head on so I was MEDVAC to the aid station where a medic lacerated my brachial artery. They are saying that it is not combat related because it was done by a US Soldier. My thought are....that I would have never been in the need to be resucitated or need an IV if I wasn't in the accident. Does anyone have any information on this?
What was your vehicle hit by? Another vehicle? I'm sorry, I don't recognize MSR. Were you outside the wire when it happened? Here is the definition in DODI 1332.38 for combat related:
a. As a direct result of armed conflict,
b. While engaged in hazardous service,
c. In the performance of duty under conditions simulating war, or
d. Through an instrumentality of war.
and more specifically, this paragraph would be of interest to you I think:
E3.P5.2.2.4. Caused by an instrumentality of war. Incurrence during a period of war is
not required. A favorable determination is made if the disability was incurred during any period
of service as a result of such diverse causes as wounds caused by a military weapon, accidents
involving a military combat vehicle, injury, or sickness caused by fumes, gases, or explosion of
military ordnance, vehicles, or material. However, there must be a direct causal relationship
between the instrumentality of war and the disability. For example, an injury resulting from a
Service member falling on the deck of a ship while participating in a sports activity would not
normally be considered an injury caused by an instrumentality of war (the ship) since the sports
activity and not the ship caused the fall. The exception occurs if the operation of the ship caused
the fall.
As you can see, there is no exception stated for US Soldier. Would it not be combat related if it had been an accidental friendly fire situation? How is it any different? That would be my argument.
Link to the DODI 1332.38: http://www.dtic.mil/whs/directives/corres/pdf/133238p.pdf
And as for the neck, I would at least make sure that the VA is rating on this. If they rated everything right in the first place, then there shouldn't be any change to your other ratings. You were boarded on the cervical neurostimulator? If you were, then the neck should be seen as a secondary condition of whatever condition caused you to need the neurostimulator and the rating for your neck should be a part of the overall rating for your condition. If you were already found unfit for that condition, then the VA re-rating should (hopefully, unless I am wrong) take care of raising your DoD percentage. Anyone with more knowledge than I can feel free to chime in on this!
Hope this helps and good luck on your appeal! Keep fighting for what's right!
Trevis
a. As a direct result of armed conflict,
b. While engaged in hazardous service,
c. In the performance of duty under conditions simulating war, or
d. Through an instrumentality of war.
and more specifically, this paragraph would be of interest to you I think:
E3.P5.2.2.4. Caused by an instrumentality of war. Incurrence during a period of war is
not required. A favorable determination is made if the disability was incurred during any period
of service as a result of such diverse causes as wounds caused by a military weapon, accidents
involving a military combat vehicle, injury, or sickness caused by fumes, gases, or explosion of
military ordnance, vehicles, or material. However, there must be a direct causal relationship
between the instrumentality of war and the disability. For example, an injury resulting from a
Service member falling on the deck of a ship while participating in a sports activity would not
normally be considered an injury caused by an instrumentality of war (the ship) since the sports
activity and not the ship caused the fall. The exception occurs if the operation of the ship caused
the fall.
As you can see, there is no exception stated for US Soldier. Would it not be combat related if it had been an accidental friendly fire situation? How is it any different? That would be my argument.
Link to the DODI 1332.38: http://www.dtic.mil/whs/directives/corres/pdf/133238p.pdf
And as for the neck, I would at least make sure that the VA is rating on this. If they rated everything right in the first place, then there shouldn't be any change to your other ratings. You were boarded on the cervical neurostimulator? If you were, then the neck should be seen as a secondary condition of whatever condition caused you to need the neurostimulator and the rating for your neck should be a part of the overall rating for your condition. If you were already found unfit for that condition, then the VA re-rating should (hopefully, unless I am wrong) take care of raising your DoD percentage. Anyone with more knowledge than I can feel free to chime in on this!
Hope this helps and good luck on your appeal! Keep fighting for what's right!
Trevis
Thanks for the reply Trevis. This system is so confusing and I feel that I am most likely not going to get what I should. However, I did sign my 199 and appealed the combat related. Waiting on a disposition on that and my COAD packet. I truly hope they keep me but in the end I feel it is a min combat related. To answer you question, yes I am med boarded due to having the cervical neurostimulator placed. Hindsight being 20/20 I wish I would not have gotten it. The pain relief is minimal and it potentially remove me from my choosen career.
If your intention is to have your neck added as a DoD unfitting condition you would need to appeal to the FPEB and show it is unfitting.
If you want it added only for VA purposes you should contact your VA rep and see if they will help. Worst case you appeal after discharge.
If COAD is approved you'll likely have to redo all C&P exams. I believe 12 months is still the max time period they're valid for.
If you want it added only for VA purposes you should contact your VA rep and see if they will help. Worst case you appeal after discharge.
If COAD is approved you'll likely have to redo all C&P exams. I believe 12 months is still the max time period they're valid for.
Pittpan2005....do you know if it is too late at this point to appeal my neck. I did sign the 199 and did appeal the administrative data...ie combat related. Any information would be greatly appreciated. Sometimes it feels as though we go through this process all alone.
Carina,
Your situation is a bit unique. I assume requesting COAD was because you feel able enough to perform your job (or auxiliary job).
I would think having more unfitting conditions could have a negative impact on that possibility, but at the same time you want to maximize DoD benefits incase COAD is not approved.
Have you asked your PEBLO or contacted legal? Also, when did you sign the 199?
When I contacted legal he said "take the money and run". Yes, I do want to remain on active duty. I don't feel as though the neurostimulator nor the lack of range of motion of my neck impedes on my ability to be a MI officer. I suppose I just confused because I want to stay in, however, I am realistic and most likely they will not retain me. So do you think I can still appeal my neck at this point or am I just going to have to claim it via the VA after I am medically retired?
Carina,
What does your PEBLO say? I would guess (s)he would be the one that you would want to talk to (especially if you are trying to get it added to your DoD rating), but with you signing the 199, you may have to go to your VA rep to talk with them about it to get the VA ball rolling and get the DoD side by a BCMR (which would be difficult I would think). Of course, I have never been in this situation. It would seem like the PEBLO would (or at least should) have the best information. If you ask for your options from legal, they should be able to tell you what all of your options are and how to pursue the ones you are interested in. Them just telling you to take the money and run is not them doing their job. Make sure you let them know that is not the option you want and how do you go about others.
Bottom line is that if you are really wanting to try to stay in, then you should fight for that. Realize though, that if you choose that route, and they boot you, then you may have minimized how your injuries are represented and it may make your percentages be artificially lower. A lot is riding on how things are written. But, that is up to you how you pursue this. We are here to help in whatever choice you decide to make, even if it is just moral support. With how unique your situation is, it is hard for us to tell you what the laws and options are.
Good luck to you!
Trevis
What does your PEBLO say? I would guess (s)he would be the one that you would want to talk to (especially if you are trying to get it added to your DoD rating), but with you signing the 199, you may have to go to your VA rep to talk with them about it to get the VA ball rolling and get the DoD side by a BCMR (which would be difficult I would think). Of course, I have never been in this situation. It would seem like the PEBLO would (or at least should) have the best information. If you ask for your options from legal, they should be able to tell you what all of your options are and how to pursue the ones you are interested in. Them just telling you to take the money and run is not them doing their job. Make sure you let them know that is not the option you want and how do you go about others.
Bottom line is that if you are really wanting to try to stay in, then you should fight for that. Realize though, that if you choose that route, and they boot you, then you may have minimized how your injuries are represented and it may make your percentages be artificially lower. A lot is riding on how things are written. But, that is up to you how you pursue this. We are here to help in whatever choice you decide to make, even if it is just moral support. With how unique your situation is, it is hard for us to tell you what the laws and options are.
Good luck to you!
Trevis