am i reading right here? that you finally recoeve a reply and, i guess an increase in your rating leading to retirement? on the ptsd rating the pdbr board HAS to use the vasrd rating that was given, for example i was discharge in 2004, after been medivac from iraq ptsd, i was given 10%by the dod medical board(army) i should, and also many other veterans, have recieve 50% off the bat, because that was what the v.a awarded me first time in, they then increase six months later to 70%, Congrats on your increase ans your retirement, as for me i have not heard anything as yet, but your responce from the pdbr tells me that we are ALMOST there, but we still have to stay focus, because dod will pull a fast one in the blink of a eye on us.(the injuried iraq and afganisthan veterans) again Congrats
Physical Disability Board of Review Update
- Thread starter Jason Perry
- Start date
GeInhausen,
Read it again bro, they never gave me PTSD (The VA did and retroed it since I seperated at 80%, but DOD didn't, they gave me the shaft), they didn't even give me my full rating for my back only 20% instead of the 40% which I was given 6 months after separation.
I didn't get retirement, only increased from 10% to 20%.
Right now, my file is in the BCMR awaiting final approval from them. If they approve it which I hope they don't! I will only recieve a pat on the back! I think severance is not on a percentage basis anymore, just years served. Which I already recieved when I was thrown to the wolves in 2005.
I wrote a letter to my congressman last night and attached all that I received.
Im still fighting my severance recoupment too, I have the American Legion helping me out there. Sent the VA and American Legion a damn excel print out of all the payments I recieved in addition to the several award letters I got to kind of remind them, next step is send them a phone book of bank statements every month since 2005 showing VA pay. Aggrivation! But keep fighting if you dont get what you got coming to you. Dont give up!!
Big Will
Big Will,
When did you get your second letter from the PDBR stating the capturing of your records was complete and being sent to the PDBR for review?
Thanks
SEMINOLES!
When did you get your second letter from the PDBR stating the capturing of your records was complete and being sent to the PDBR for review?
Thanks
SEMINOLES!
I never did, I had to call and get the status.
I don't get this at all. Seems like they TOTALLY ignored the Change 1 and congressional ORDERS on how they where supposed to evaluate these cases. I think they took a narrow read of the "review any VA decision within one year of discharge" and used it to nail you with the first 20% rating you got, while ignoring the second increase. It's like the board is saying you are stuck with your first rating even if you get an increase, and that increase is still within the one year time frame. Raised from 10% to 20%, what a BS kick in the balls.......you gotta love these A#S H*L@S. I figured they would come up with some creative way to withhold retired pay. It will be interesting to see how the rest of these early cases play out. I am really sorry to hear about their decision in your case Wil.
Big Will,
I am currently assisting a soldier who is having similar problems with the PDBR's refusal to address all medical conditions, and in particuliar, his PTSD. When I get home tonight, I will try and post the guts of a letter I wrote that you may find useful.
When was the effective date of the 40% VA rating. Did it go back to your separation date?
I am also working to get another round of media coverage on PDBR issues and would like to pass your experience to the reporter.
Mike
I am currently assisting a soldier who is having similar problems with the PDBR's refusal to address all medical conditions, and in particuliar, his PTSD. When I get home tonight, I will try and post the guts of a letter I wrote that you may find useful.
When was the effective date of the 40% VA rating. Did it go back to your separation date?
I am also working to get another round of media coverage on PDBR issues and would like to pass your experience to the reporter.
Mike
Hey Mike,
I got 70 or 80% back in September of 07 retroactive since I separated in 2005 (Dont have the award letter in front of me right now.) Oh and initially I was rated 30% for Depression and Anxiety right out of seperation according to VASRD which was upgraded to PTSD. I have military mental health records and witness statements to back my military nexus for the PTSD symptoms.
I got my 40% 6 months after separation for VASRD 5243 Intervertebral Disk Disease because they messed up my MEB and the MEB gave me "lower back spasms" at DOD 10% with seperation and severance. After I separated, the VA gave me 20% for VASRD 5237 lumbosacrial strain which was another fowl up since several months before and after separation I have several MRI and X-Ray reports stating I have Degenerative Disk Disease and the whole nine yards in addition to a Nexus statement from a civilian ortho surgeon stating I did it in the military. I had a doctor in the 6 months after exam ask me "why did they give you back spasms when you have all these issues?" I didnt know, so she put the paperwork in and I got my 40%. Its funny in my PDBR report it doesnt say what the VA increase my rating too..it just says "his condition worsened after seperation and a subsequent VA evaluation six months later resulted in a 40% rating." Added VASRD codes for everything else, but not that one statement!
Thanks Mike for the help, if you need me I can sent you a blocked out version of the full letter and summary report sent to me?
Big Will
You are totally on point my friend! Thank you! I couldn't have said it better myself! And the f&cked up thing is, they added it half assed in the report!
Hey Guys,
If you need any help with press or media relations, I am willing to give my story. Let me know! My congressman has already received my end, when I get back this weekend, Im preparing letters to media in my area!
The fight is on!
If you need any help with press or media relations, I am willing to give my story. Let me know! My congressman has already received my end, when I get back this weekend, Im preparing letters to media in my area!
The fight is on!
William J. Anderson
SAF/MRBR (PDBR Intake Unit)
550 C Street West, Suite 41
Randolph AFB, Texas 78150-4743
Sir,
I strongly disagree with the PDBR’s decision that they cannot review all of my medical conditions indentified during my Disability Evaluation System (DES) case. The PDBR’s decision not to review all the conditions identified during my DES case continues a very disturbing trend of the DoD and the PDBR doing the least possible to ensure that erroneous DES decisions are corrected and DoD properly compensates disabled service members. In the recent past, DoD decided that PDBR decision would not be retroactive, that only conditions originally deemed unfitting by the PEB could be reviewed and that the PDBR could continue to use non VASRD rating criteria. All of these decisions had an adverse impact on soldier getting their legally due disability benefits. DoD only overturned these decisions after media exposure and Congressional pressure.
By law, I am entitled to have all of the decisions of the PEB reviewed using the entire military record concerned. 10 USC 1554a states:
(a) IN GENERAL.—
(1) The Secretary of Defense shall establish within the Office of the Secretary of Defense a board of review to review the disability determinations of covered individuals by Physical Evaluation Boards. The board shall be known as the ‘Physical Disability Board of Review’.
and,
(1) Upon the request of a covered individual, or a surviving spouse, next of kin, or legal representative of a covered individual, the Physical Disability Board of Review shall review the findings and decisions of the Physical Evaluation Board with respect to such covered individual. Subject to paragraph (3), upon its own motion, the Physical Disability Board of Review may review the findings and decisions of the Physical Evaluation Board with respect to a covered individual.
and,
(2) The review by the Physical Disability Board of Review under paragraph (1) shall be based on the records of the armed force concerned and such other evidence as may be presented to the Physical Disability Board of Review. A witness may present evidence to the Board by affidavit or by any other means considered acceptable by the Secretary of Defense.
One of the first determinations the PEB must make is whether or not the Medical Evaluation Board is complete and thorough. AR 635-40 states:
4–18. Initial processing
a. Upon receipt of a case by the PEB, the case file will be reviewed to ensure it is complete. If documents are missing, action will be taken to complete the file. When the case file is complete, it may be referred to the board for evaluation.
My MEB clearly did not complete my evaluation per the standards of DoDI 1332.38 which states:
E3.P1.2.3. Content. MEBs, TDRL physical examinations, and Reserve
component physical examinations shall document the full clinical information of all medical conditions the Service member has and state whether each condition is cause for referral into the DES. (See enclosure 4 of this Instruction.) Clinical information shall include a medical history, appropriate physical examination, medical tests and their results, medical and surgical consultations as necessary or indicated, diagnoses, treatment, and prognosis. MEBs shall not state a conclusion of unfitness because of physical disability, assignment of disability percentage rating, or the appropriate disposition under Chapter 61 of 10 U.S.C. (reference (b)).
While my numerous medical conditions were included in my MEB physical, (DA 2807-1) the MEB failed to document the full clinical information for these conditions and did not state which conditions were cause for referrals to the DES. My DA 3947, (Medical Evaluation Board Proceedings) failed to list all my medical conditions and state their status for referral to the DES. This is a trash in/trash out situation facilitated by the PEB’s erroneous determination that my MEB was complete when it clearly was not. This is especially egregious because the PEB can determine that conditions that are not independently unfitting or even referable to the DES can have a combine unfitting effect and rated by the PEB. Per DoDI 1332.38:
E3.P3.4.4. Overall Effect. A member may be determined unfit as a result of
the overall effect of two or more impairments even though each of them, standing alone, would not cause the member to be referred into the DES or be found unfit because of physical disability.
My DES case is typical of the problems Congress wanted the PDBR to fix. The MEB clearly did not conduct a complete MEB per DoDI 1332.38 and the PEB facilitated this problem by erroneously determining that my MEB was complete. The MEB and PEB both cherry picked condition to consider and which laws and regulations to follow. (The PDBR is further exacerbating the problem by declaring only conditions in the “official record” (apparently defined by the PDBR as the DA 3947) when my official record included all of my conditions per the MEB physical. Further, the PDBR must, by law cited above, consider all the evidence of the record to include the information I sent in with my application. Please follow the law and review my case in context of all required laws, regulations and policies as well as the evidence I sent in with my application.
Had the MEB and PEB done their jobs correctly, my numerous medical conditions would have been properly assessed as either independently unfitting or contributing to unfitting making my military disability rating much higher than what my PEB granted.
Again, I demand you consider my PDBR applications as submitted and review all my medical conditions per applicable laws, regulations and policies.
Respectfully,
SAF/MRBR (PDBR Intake Unit)
550 C Street West, Suite 41
Randolph AFB, Texas 78150-4743
Sir,
I strongly disagree with the PDBR’s decision that they cannot review all of my medical conditions indentified during my Disability Evaluation System (DES) case. The PDBR’s decision not to review all the conditions identified during my DES case continues a very disturbing trend of the DoD and the PDBR doing the least possible to ensure that erroneous DES decisions are corrected and DoD properly compensates disabled service members. In the recent past, DoD decided that PDBR decision would not be retroactive, that only conditions originally deemed unfitting by the PEB could be reviewed and that the PDBR could continue to use non VASRD rating criteria. All of these decisions had an adverse impact on soldier getting their legally due disability benefits. DoD only overturned these decisions after media exposure and Congressional pressure.
By law, I am entitled to have all of the decisions of the PEB reviewed using the entire military record concerned. 10 USC 1554a states:
(a) IN GENERAL.—
(1) The Secretary of Defense shall establish within the Office of the Secretary of Defense a board of review to review the disability determinations of covered individuals by Physical Evaluation Boards. The board shall be known as the ‘Physical Disability Board of Review’.
and,
(1) Upon the request of a covered individual, or a surviving spouse, next of kin, or legal representative of a covered individual, the Physical Disability Board of Review shall review the findings and decisions of the Physical Evaluation Board with respect to such covered individual. Subject to paragraph (3), upon its own motion, the Physical Disability Board of Review may review the findings and decisions of the Physical Evaluation Board with respect to a covered individual.
and,
(2) The review by the Physical Disability Board of Review under paragraph (1) shall be based on the records of the armed force concerned and such other evidence as may be presented to the Physical Disability Board of Review. A witness may present evidence to the Board by affidavit or by any other means considered acceptable by the Secretary of Defense.
One of the first determinations the PEB must make is whether or not the Medical Evaluation Board is complete and thorough. AR 635-40 states:
4–18. Initial processing
a. Upon receipt of a case by the PEB, the case file will be reviewed to ensure it is complete. If documents are missing, action will be taken to complete the file. When the case file is complete, it may be referred to the board for evaluation.
My MEB clearly did not complete my evaluation per the standards of DoDI 1332.38 which states:
E3.P1.2.3. Content. MEBs, TDRL physical examinations, and Reserve
component physical examinations shall document the full clinical information of all medical conditions the Service member has and state whether each condition is cause for referral into the DES. (See enclosure 4 of this Instruction.) Clinical information shall include a medical history, appropriate physical examination, medical tests and their results, medical and surgical consultations as necessary or indicated, diagnoses, treatment, and prognosis. MEBs shall not state a conclusion of unfitness because of physical disability, assignment of disability percentage rating, or the appropriate disposition under Chapter 61 of 10 U.S.C. (reference (b)).
While my numerous medical conditions were included in my MEB physical, (DA 2807-1) the MEB failed to document the full clinical information for these conditions and did not state which conditions were cause for referrals to the DES. My DA 3947, (Medical Evaluation Board Proceedings) failed to list all my medical conditions and state their status for referral to the DES. This is a trash in/trash out situation facilitated by the PEB’s erroneous determination that my MEB was complete when it clearly was not. This is especially egregious because the PEB can determine that conditions that are not independently unfitting or even referable to the DES can have a combine unfitting effect and rated by the PEB. Per DoDI 1332.38:
E3.P3.4.4. Overall Effect. A member may be determined unfit as a result of
the overall effect of two or more impairments even though each of them, standing alone, would not cause the member to be referred into the DES or be found unfit because of physical disability.
My DES case is typical of the problems Congress wanted the PDBR to fix. The MEB clearly did not conduct a complete MEB per DoDI 1332.38 and the PEB facilitated this problem by erroneously determining that my MEB was complete. The MEB and PEB both cherry picked condition to consider and which laws and regulations to follow. (The PDBR is further exacerbating the problem by declaring only conditions in the “official record” (apparently defined by the PDBR as the DA 3947) when my official record included all of my conditions per the MEB physical. Further, the PDBR must, by law cited above, consider all the evidence of the record to include the information I sent in with my application. Please follow the law and review my case in context of all required laws, regulations and policies as well as the evidence I sent in with my application.
Had the MEB and PEB done their jobs correctly, my numerous medical conditions would have been properly assessed as either independently unfitting or contributing to unfitting making my military disability rating much higher than what my PEB granted.
Again, I demand you consider my PDBR applications as submitted and review all my medical conditions per applicable laws, regulations and policies.
Respectfully,
Gel - if I am reading correctly, Big Will got increased from 10% to 20% - but since severance is still the outcome, and the payment calculation of that severance is the same, he's no better off than he was.
Big Will - let us know if you hear anything further?
Thanks.
Big Will - let us know if you hear anything further?
Thanks.
Jason Perry
Founder and Leader
Site Founder
Staff Member
PEB Forum Veteran
Lifetime Supporter
Registered Member
Big Will,
Did you receive any advisory opinion before you received the findings? Did you ask to receive any advisory opinions in your application?
There are several issues that I think would help members on appeal if they would state it in their application. This is by no means an exhaustive list and each case must be evaluated and prepared based on the individual facts of the case. But, things to consider are:
1) Asking that other conditions not specifically considered by the PEB be evaluated by the PDBR.
2)Asking that administrative findings (i.e., combat-related nature of conditions) be reviewed.
3)Asking that EPTS or natural progression issues be reviewed.
4) Challenging sufficiency of the MEB.
5)Challenging non-VASRD (i.e,, DoDI 1332.39) criteria used to evaluate the case.
6) Challenging denial of right to Independent Medical Advisor (post Jan. 28, 2008 cases).
7) This one is very important, raising the issue of both the rating awarded by the VA AND the underlying facts found by the VA in making its rating determination.
There are many other issues that may want to be specifically addressed. The real important point is that in your PDBR application, you MUST raise issues that you may want to challenge later in Federal Court. There are many cases where the courts have said that if you do not raise an issue in the administrative appeal, you cannot then go to court and raise the issue for the first time. There are even cases out there where the court has stated that the Servicemember is correct on the objections raised in court, but, because it was raised for the first time in court, they cannot grant the relief (this is a simplification, and the precise legal terms and process are slightly different). The point is, it is very important to have a good PDBR application if you are going to win over the long haul. My sense is that there are many ways to show that the PDBR and the military Service have erred. But you have to have a good application in the first instance to maximize your chances. It appears that they are not going to correct cases without a fight.
Did you receive any advisory opinion before you received the findings? Did you ask to receive any advisory opinions in your application?
There are several issues that I think would help members on appeal if they would state it in their application. This is by no means an exhaustive list and each case must be evaluated and prepared based on the individual facts of the case. But, things to consider are:
1) Asking that other conditions not specifically considered by the PEB be evaluated by the PDBR.
2)Asking that administrative findings (i.e., combat-related nature of conditions) be reviewed.
3)Asking that EPTS or natural progression issues be reviewed.
4) Challenging sufficiency of the MEB.
5)Challenging non-VASRD (i.e,, DoDI 1332.39) criteria used to evaluate the case.
6) Challenging denial of right to Independent Medical Advisor (post Jan. 28, 2008 cases).
7) This one is very important, raising the issue of both the rating awarded by the VA AND the underlying facts found by the VA in making its rating determination.
There are many other issues that may want to be specifically addressed. The real important point is that in your PDBR application, you MUST raise issues that you may want to challenge later in Federal Court. There are many cases where the courts have said that if you do not raise an issue in the administrative appeal, you cannot then go to court and raise the issue for the first time. There are even cases out there where the court has stated that the Servicemember is correct on the objections raised in court, but, because it was raised for the first time in court, they cannot grant the relief (this is a simplification, and the precise legal terms and process are slightly different). The point is, it is very important to have a good PDBR application if you are going to win over the long haul. My sense is that there are many ways to show that the PDBR and the military Service have erred. But you have to have a good application in the first instance to maximize your chances. It appears that they are not going to correct cases without a fight.
when i submitted my 294, i did not ask them to review them all. i did not know i could. i only asked they review my anxiety disorders that i was given 10% for by the service but then my first VA rating gave me 30% for. can i send a letter asking them to review them all eventhough my app is now in Washington?
Hey Guys,
Thanks for the letter Mike, I'll copy and paste it when I get back home tomorrow. Vel, appreciate the support, I'll keep everyone notified.
Jay, I don't think I received any advisory opinion, are you talking about a VA Advisor? I didnt ask for one in the application either.
I did ask though that my other conditions be considered for the PDBR but they stated a "run around" answer about my PTSD. I understand about GERD and Hypertension, but there is something messed up about my back determination and PTSD consideration. Its like they never looked at the full VA file or DOD medical that I sent along with VA.
When I get back home tomorrow, im sending out my story to the different media avenues so more of the people know what is happening again! Thanks guys for the help, and I don't think I can do this without you guys, I already fought hard through the VA, now its on another level and it gets exhausting. But Im not quiting on myself and my brothers and sisters out there like you guys, we are going to win this!
Thanks for the letter Mike, I'll copy and paste it when I get back home tomorrow. Vel, appreciate the support, I'll keep everyone notified.
Jay, I don't think I received any advisory opinion, are you talking about a VA Advisor? I didnt ask for one in the application either.
I did ask though that my other conditions be considered for the PDBR but they stated a "run around" answer about my PTSD. I understand about GERD and Hypertension, but there is something messed up about my back determination and PTSD consideration. Its like they never looked at the full VA file or DOD medical that I sent along with VA.
When I get back home tomorrow, im sending out my story to the different media avenues so more of the people know what is happening again! Thanks guys for the help, and I don't think I can do this without you guys, I already fought hard through the VA, now its on another level and it gets exhausting. But Im not quiting on myself and my brothers and sisters out there like you guys, we are going to win this!
Big Will,
I understand the 40% back rating was assigned by the VA six months after you left. However, did they specifically state the effective date of the rating. If you had the disc problem to the same degree when you left service, the rating should be effective the date you left service.
Please PM your email and phone number so I can get you in contact with the reporter looking into this.
Mike
I understand the 40% back rating was assigned by the VA six months after you left. However, did they specifically state the effective date of the rating. If you had the disc problem to the same degree when you left service, the rating should be effective the date you left service.
Please PM your email and phone number so I can get you in contact with the reporter looking into this.
Mike
No they effective dated it as of the date I filed which was April 2006. Even though I have MRI, XRay, and Ortho Reports while I was in the military. I'll PM you that info now.
But this diagnosis was the same as the military diagnosis, but not the MEB diagnosis and initial VA exam diagnosis, like they never cared about looking at my medical records and my statements!!
Jason Perry
Founder and Leader
Site Founder
Staff Member
PEB Forum Veteran
Lifetime Supporter
Registered Member
This is one of the real difficulties with this system...they describe it as a user friendly sort of informal system on the one hand...but then if they rule against the member, the odds are the member just accepts, or if s/he appeals to court, they lose because they did not raise matters in the BCMR or PDBR that there attorney cannot now raise in court. It is a huge disservice the way this system is administered.
I don't know how they will respond (i.e., would they send your case back to the intake unit, or deny the request, or what), but you can certainly ask. It looks from the regulation that they will only review conditions that you ask them to that were not unfitting the first time through the PEB.
If you do request and they do not consider your other conditions, you may be in the position of going back to the PDBR with a new or amended application to cover these conditions. I suppose you could challenge the scope of the PDBR in court, if you go there for your other conditions (i.e., you are not happy with the results of the PDBR). But, since you did not ask them to review, I can see them saying that you can't now complain about something you never previously asked for...so it seems more likely you go back to the PDBR (now or later) to ask them to address all conditions.
One comment, too. If your anxiety disorder was due to a stressful event, then
Section 4.129 of the VASRD applies and you should be rated at the minimum temp rating of 50%.
As always, none of this is legal advice, just comments on what you state. Seek legal help if you have questions, especially on the more complicated issues having to deal with the courts.
Hope you get a result you want in the first place and don't need to fight further. Best of luck!
Jason-
Back when we went through the ratings, the VASRD had the recommended percentages next to each condition. I can't find that anywhere now - any ideas on where to look? I'm specifically looking for this section:
Tenth (pneumogastric, vagus) cranial nerve
8210 Paralysis of
8310 Neuritis
8410 Neuralgia
Thanks,
Jen
Back when we went through the ratings, the VASRD had the recommended percentages next to each condition. I can't find that anywhere now - any ideas on where to look? I'm specifically looking for this section:
Tenth (pneumogastric, vagus) cranial nerve
8210 Paralysis of
8310 Neuritis
8410 Neuralgia
Thanks,
Jen
has any veteran out there, recieve a rating from the pdbr for ptsd as yet?and if so what was the increase? i am a bit confuse here, it seem some people are getting letters from the pdbr about increase of rating, was it for ptsd? because there is NO way the pdbr can award a increase of only 10% for ptsd,when the dod medical board seperate a service member with 10% for ptsd at discharge,big will, if you are reading this please be more clear so we out here, can help you, if the pdbr only awarded you a increase of 10% for ptsd, which is combat related from iraq, or afganisthan