MEB stated Fibroymalgia EPTS

Ed,

See para b from the section below from AR 600-8-4, LOD.

2–6. Standards applicable to LD determinations

Decisions on LD determinations will be made in accordance with the standards set forth in this regulation.

a. Injury, disease, or death proximately caused by the soldier’s intentional misconduct or willful negligence is "not in LD—due to own misconduct." Simple or ordinary negligence or carelessness, standing alone, does not constitute misconduct.

b. An injury, disease, or death is presumed to be in LD unless refuted by substantial evidence contained in the investigation.


Mike
I'm quite aware of those provisions Mike. But it isn't, and can't be, that simple for Reservists not on extended active duty. I remember a case I had where a Reservist from the 77th ARCOM had an epileptic seizure (the first one he ever had) while on weekend drill. He fell and broke his nose. The broken nose was determined to have been incurred in line of duty. The epilepsy was considered to be NLD-NDOM (EPTS).
 
The provisions of AR 600-8-4 apply to active, guard and reserve. It is possible the reason the epilepsy was deemed non duty related was becuase the LOD investigation found substantial evidence it was not duty related. That would be the correct way to determine something is not duty related. The oweness is on the Army to come up with that evidence. I know this is often not done and the wounded warrior and their families are the bill payers for blowing off LOD investigations and/or not doing them correctly.

Mike
 
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@Ed Mercanti

The law states, "unless clear and unmistakable evidence demonstrates that the disability existed before the member’s entrance on active duty and was not aggravated by active military service." The member was on AD in Iraq. The condition is a presumptive condition for compensation. DoD is require to follow the VA rulings. Since the VA presumes the condition is service connected and the member was on AD while in the AOR the burden to refute a presumptive condition falls to the Service.
 
@Ed Mercanti

The law states, "unless clear and unmistakable evidence demonstrates that the disability existed before the member’s entrance on active duty and was not aggravated by active military service." The member was on AD in Iraq. The condition is a presumptive condition for compensation. DoD is require to follow the VA rulings. Since the VA presumes the condition is service connected and the member was on AD while in the AOR the burden to refute a presumptive condition falls to the Service.
Clear and unmistakable is in the eyes of the beholder. I've just told you what is looked at. Take it as you will.
 
Clear and unmistakable isn't supposed to be in the eyes of the beholder. It is supposed to be anyone (reasonable) can look at these sets of facts and go, yeah, certainly nothing to do with a covered period.

The non-LOD issue may be quite easy for the Army to determine for a reservists, since reservists have so many days that aren't covered. This creates some difference that are sometimes hard to understand, but this reference doesn't clarify them. The non-LOD for active duty, is harder, have to show some misconduct usually because pretty much every day is covered. Driving home on the weekend is still service connected, all the LOD would be for is if there might be alcohol involved. Reservists, there are questions about is it a weekend drill, etc.

I think the point is the Army still must determine that, not just assume it. The can't just say car accident, non-LOD. The Army still must start from the assumption that it is, and then track the reasoning that says, no, it actually isn't. Because the night of Dec 4th wasn't associated with the reserve time, or the epilepsy symptoms didn't first present during a covered time period, what have you. They shouldn't ask the reservists to first prove that it is and deny out of insticts if they fail to provide anything.

They should, at a minimum, point to a specific symptom of fibro that occurred before the deployment. Not ask you to prove that there was none.
 
The painting on the top of the Sistine chapel is beautiful. Moral is not murdering your neighbor because you don't like the way he looks. Sure, you could come up with arguments against them, but those arguments are going to be pretty strained and you won't find many to agree with them.

Clear and unmistakable means that most reasonable people will agree that something is so. Granted there is some ambiguity in most and reasonable. But that's not as uncertain as say, "Is this post-modern art beautiful?", or "Is going 5 miles over the speed limit moral?"

Fundamentally, you can't get 100% agreement on anything. There are people who argue the earth is flat. There are even arguments that everything about you is entirely contained in yourself and that any perception, sensory or otherwise, is fundamentally subjective and that knowing anything outside yourself is impossible. Making the whole world black/white without any grey doesn't really work.

The basic ideas are you have a medical assessment before you deployed. That did not find the problem. During the deployment, you develop symptoms. The normal logic would follow that the disease that describes the symptoms would therefore be new. They need to come up with something solid, not mere conjecture, to refute that. It's not that, well, we can't prove the fibro started during the deployment, maybe it has been a process building for a long time. Fibro is further complicated because the VA says fibro is just a likely development from a deployment. Correlation is not causation, but the statistics are weird enough that they feel any former deployment service member who develops fibro, it is probably related to their service. If the VA says its there, how can the Army then argue they have clear and unmistakable evidence?

Now it is pretty obvious fibro doesn't just turn on over night. This same logic won't work for fibro over a weekend drill (or epilepsy). A weekend drill, the clear and unmistakable evidence should be easy to understand, by looking at the way these disease processes work over, well, every known instance.

Maybe they don't formalize the decision process every time, because well, in some cases it is pretty clear and unmistakable. Our basic instincts say people don't develop epilepsy over a weekend. If you wanted to say that yes, you did indeed develop epilepsy that way, it is up to the Army to provide the reasoning that says, nope, no head injury, no flashing lights, there is no medically explainable way for that to occur. They have the experts that would understand that a head injury or flashing lights is important, heck you might be all sorts of screwed up and can't write you name anymore, let alone not have the right medical knowledge. It can't be up to you to first say btw, I need my epilepsy covered because I had a head injury 2 hours before the seizure and the face plant, aren't those likely to be related.

I think I get your problem with it. It is sounding like every problem should be covered. That obviously isn't the case, so something is off. It isn't that the Soldier is always right and the government has to prove him wrong. It is more about, I think, they're supposed to be on your side. We take care of our wounded, not try to find way to screw them if they can't figure out the right argument. That is moral.
 
CAVC’s 2005 Bolinger decision (05-3123):
Although it is "likely," "more likely," "apparent," and the evidence "indicates" that Mr. Bolinger had schizophrenia before he entered service such that, cumulatively, the Board's finding that Mr. Bolinger has had schizophrenia since before he entered service is plausible and not clearly erroneous, this is not sufficient to overcome the presumption of soundness. To overcome a presumption of soundness, the evidence must be clear and unmistakable, and that requires that the evidence be undebatable. See Vanerson v. West, 12 Vet.App. 254, 261 (1999) ("the standard of proof for rebutting the presumption of soundness is not merely evidence that is cogent and compelling, i.e., a sufficient showing, but evidence that is clear and unmistakable, i.e., undebatable").

Hopefully the federal court decision above will help calibrate what clear and unmistakable means. It is a very high standard. To be clear, this is the standard when a condition first appears or manifests while on active status. Else the standard centers around substantial evidence such as captured in AR 600-8-4.

I am fearful that BCMRs continue to fail to adhere to these standards thus cheating wounded warriors and their families out of proper DoD disability benefits.

I have had a handful of cases where the PEB failed to adhere to these standards but once challenged they relented.


Mike
 
No doubt that's the way the court would look at it Mike. Excellent citation. Thank you for sharing it.
 
I received a call from my PEBLO. She stated that the PEB added the Fibromyalgia to my rating. I have a 60 percent rating from the iPEB.
Now things are good in this regard but it is looking like it doesn't matter (aside from TriCare). I am a National Guardsman, I have 18 good years (for retirement) but for pay, I have 20 years "military service". My RPAM points add up to about 6 years and 7 months. So, I qualify for a medical retirement but I don't think I get any benefits aside from TriCare and PX/Commissary benefits. Unless someone knows something I don't. Which is quite possible...
 
Aside from mortors being shot onto the COB (Adder), tallil, Iraq I didn't have any situation where we faced immanent danger. I was not in a real close proximity to any of the shellings. I could see them impact but I was at a safe distance.

So, No. Right?
 
I just got confused by my own ignorance and simple mindedness more than likely. But, I read your post initially to read "Yes the Army/DoD will also give a rating for Sleep Apnea (if appropriate)" Then I continued to read and became unclear if you were saying yes the Army/DoD does rate OSA as does the VA or if you were saying "yes the VA will rate OSA if appropriate".

So, I ask simply for clarity: Is it possible that I get a rating from both the Army/DoD and the VA for Sleep Apnea?

My PEBLO told me that the Army only referred me to the VA for three conditions, though I have over a dozen different diagnosis. She explained that there are some things the army doesn't say limit my ability to perform my duties. I am diagnosed with OSA by the VA (not rated yet) but I don't see how they won't S/C my OSA. But, OSA was not one of the conditions the Army is asking for a rating on.

I don't know that I agree with the Army leaving out certain conditions that I can find in chapter 3 the AR 40-501 which I have. However, in the end it only matters for a rating percent. The Army isn't going to provide any treatment to me for any of the unfitting conditions (unlike the VA where I will argue for everything I feel is accurate).

I'm still waiting and still frustrated :-/

Thanks,

-lance

If it's EPTS how did you commission (you said REFRAD in your initial post)? Did MEPS say you had Fibromyalgia?
 
Actually, don't answer that. I just noticed your PEBLO added the Fibromyalgia so the ETPS question you posted will likely get sorted out.

Sorry about not paying attention there. I hope your PEB goes well and you are able to get treatment for your conditions.
 
I received my official iPEB ratings. They came back with 40% and stated that Fibromyalgia was not service connected. So, it looks like I'll be borrowing your letter Mike. I had my counseling with my PEBLO today so I have 10 days to turn in my election and appeal statement if I choose. I got in touch with the SMEBC and set up an appointment for tomorrow morning. Also, about a month and a half ago I requested an LOD for my Fibromyalgia (again) and also for my OSA. I just got to get them to actually put it in the system.
I'm not sure but it seems that they (Med Dsch Co) are deliberately ignoring me and not loading the LOD packet. I gave them everything under the sun. And, I've learned here that the burden is on the Army to disprove my claim, not the other way around. Pray for me :)

-lance
 
I have a tag along for this... I have a few big items such as my Fibromyalgia that I am fighting for with the Army. However, I also have some items that I am fighting for with both the Army and the VA. One of which is OSA. Also I was denied for numerous joints, plantar fasciitis, had whacko range of motion measurements recorded (completely not accurate) for my shoulder; they did not service connect/rate my chronic headaches or migraines and I have a number of side effects of my medications such as weight gain, ED and vertigo. Also, I have IBS which the army didn't think mattered I also feel I was underrated on my BH but, that's going to take a professional opinion to change.

I know the Army will only rate me for conditions that affect performance of my MOS/duties. the above conditions were all disregarded (except my shoulder which had whacko measurements causing it to be underrated) by the army. I think that my foot and joint conditions limit my ability to perform the duties of any soldier or even wear the appropriate PPE. How then can they say it is not a ratable condition?

Thanks,

-lance
 
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