Ryanlo22,
Welcome to the PEB Forum! Sorry to hear of your difficulties with your disabilities and their impact on your career, as well as having to fight for additional compensation and benefits.
There is a lot to "unpack" in the posts, so hang on and read my comments.
I was medically discharged with a 70 percent rating on Jan 28th 2013, and was upgraded to 100 percent within 1-2 years (I don't remember the exact date off hand).
From reading your posts, including the later posts, it sounds like you were ultimately separated from the military with a 20% rating and awarded an initial 70% VA rating. You later had an increase to 100%. Not clear if the increase was a result of your condition(s) worsening or if the increase was an acknowledged error in initial rating with an effective date of the date of your discharge. This detail is important.
Now, my issue is I was upgraded so quickly to 100 percent since I was able to actually submit my other issues after being released. Since I was seemingly instructed incorrectly and my MEB was handled poorly is there a chance that my medical discharged could be switched to a medical retirement? If so, could you point me in the direction of the steps I would need to start the process?
You have two options for seeking an upgrade to mililtary disability retirement- filing an application before your service's Board for Correction of Military Records or filing a lawsuit in the US Court of Federal Claims.
What is unclear from your posts is whether your VA increase in ratings was a result of continuous appeal (or, perhaps, but unlikely, a CUE claim) or the increase was a result of worsening of your already rated conditions or, even perhaps, the result of deferred or later raised claims.
What is most important is the ratings for your unfitting conditions or those conditions that you can reasonably argue should have been unfitting at the time of your separation. Need a lot more details and specificity about your situation to offer much more input. These details are vital to understanding your situation.
So I did make a mistake in my original post. My wife informed me that the VA rated me 70 percent and the military PEB rated me 30 percent. The VSO person who assisted me with being upgraded to 100 percent stated he was shocked at the vast differences in rating.
This update is somewhat more helpful, but not really. See my previous points, above.
VSO's are unlikely to have much experience or knowledge about the military disabiliy evaluation system and it is not unusual to see wide discrepancies between military and VA ratings based on the fact that the military only compensates for unfitting conditions.
And to add I was given a severance package but have already paid that back. Would I still be able to submit a form or something to be upgraded to Retirement?
Yes.
I was rated at 20 percent, I remember specifically because even the VSO I used and a slew of other people I spoke with stated that they ONLY rated me 20 percent instead of 30 percent or higher just so they WOULDN'T have to medically retire me. Even though the VA rated me at 70 percent and upgraded to 100 percent within two years of getting out.
You really need to make sure you understand the difference between "unfitting" conditions and their entitlement to ratings on the military side and "compensable" conditions rated by the VA. This is a huge issue and is vital to your understanding of your case and the results of any appeal for military retirement. If you don't wrap your mind around this issue, it will be hard for you to understand your case moving forward.
It is possible to have the discharge upgraded, will most likely need to file a claim in federal court.
Not quite right. BCMR is still an option. Court of Federal Claims as an avenue of relief has some advantages (including the obligation of the government to gather all of your records and file them with the court as part of the Administrative Record). However, the judicial, i.e., court route is likely much more expensive. The result of many military pay/retirement cases before the court is often an initial remand back to the BCMR. Still, there are advantages to going the court route. On the other hand, it can make sense to go first to the BCMR. My opinion on this is- just as in every case- that you have to look at the facts and circumstances of each case and weigh the costs and benefits before making an informed decision.
It is possible to have the discharge upgraded, will most likely need to file a claim in federal court. There are a couple of agencies that can asssit you for little to no cost. Veterans Legal Institute and NVSLP. One word of caution, little to no cost typically means very slow to get results.
See above. As far as the organizations mentioned, I have never heard of the Veterans Legal Institute. They may be fine and a good choice. Just pointing out that I have never heard of them and that is something to consider given the small constellation of lawyers who work in this area of law. I suspect they focus on VA cases vice military disability cases. NVLSP has a stellar reputation, they have done a lot of good work, but, I don't know that they are inclined or able to pick up "one off" cases. Their "claim to fame" is/was the Sabo class action case (which, they worked with several law firms to pick up representation for many of the class members).
I normally am not a fan of any attorney or law firm having a link or mention on this forum. However, I don't see anything negative about these firms or organizations and I feel it is fine to keep the links even only if it advances the discussions.
One particular point I wanted to clarify. Many times military disabilitiy cases can take a REALLY LONG time to resolve. Not always. I have had cases take only 4-6 months to get a desired result on appeal. But, I have also had cases take 8-9 years. Both of those extremes are "outliers." They are outside the "average." Still, I am not sure the "average" even helps folks in understanding the issues. I would "guestimate" that should you or anyone appeal, you should buckle in for at least 18 months. It could resolve much sooner (or later). The complexity of the case, the evidence in the case and other factors can impact the timing. By a lot. You have to be prepared for that.
Contact an attorney like
@Jason Perry at peblawyer.com and you will get individualized treatment as a client. It may cost a little more but in the end may pay off.
Same as I mentioned above, I don't normally favor links to business, attorneys, or organizations. Even mine. Still, I figure, if I am going to let the above links go ahead, no reason to not include myself.
Just recall my points above and that having a private attorney is no magic wand for getting a "quick" outcome.
Hope this post and my response was helpful to your understanding, Ryanlo22. I hope you get a great result from any appeals you pursue and that you get a great overall outcome. Best of luck!
