Physical Disability Board of Review Update

Jwilliams61735 said:
If its alright with Jay and Mike to post on this forum..

I hope this is alright with you Jason and Mike, I just want to organize and figure out who is so far got the shaft.

Big Will
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If people feel comfortable posting, I have no problem with it. It would be good to have some visibility on the numbers and results (even if a small sample).

I would strongly recommend omitting any SSN, Addresses, full names, or other sensitive info.
 
Jason said:
Seems like a strong argument that you should have been rated for incapacitating episodes. Only thing I would want to explore is if this is still an ongoing issues (i.e., that the argument would help you today). Also, did the VA look at that issue?

Bottom line, if it is helpful, then you should argue it.
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It can be an ongoing issue Jay, but as of right now, im Unemployable, so I have no job that will require bed rest. I could have a statement written by several people backing up the fact I have had been laid up in bed for days at a time. I don't see my primary care provider that much, only in 6 month increments. But she just upgraded my pain killers to Darvocet 650's and I need a referral for a 10's Unit. In addition to all that I have 7 other meds in my coctail.

Now the VA looking at those issues, you mean incapacitation right out of seperation or the stomach and anxiety disorders? I recieved GERD for stomach and 10% right out of seperation and I recieved 30% for depression and anxiety right out of seperation with a new diagnosis in Oct. 2008 of PTSD w/depression and anxiety at 70% retroactive since my seperation.
 
Jason said:
If people feel comfortable posting, I have no problem with it. It would be good to have some visibility on the numbers and results (even if a small sample).

I would strongly recommend omitting any SSN, Addresses, full names, or other sensitive info.
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Definately, I would never condone the SSN, Addresses, Full Names, ect. Just information to back up our cause.
 
Not sure I understand the question. But, if you mean do they have to count the original award or the retroactive award (or if a later appeal results in an increase, with an effective date within a year of separation), I argue that whatever is most favorable to you should apply.

That is, just because it takes the VA time to process the case and appeals to be completed, does not change the fact that you have a VA award that is granted within a year of separation. Here is the applicable part of DoDI 6040.44, "Once obtained, the PDBR should compare any DVA disability rating for the specifically military unfitting condition(s) with the PEB combined disability rating and consider any variance in its deliberations and any impact on the final PEB combined disability rating, particularly if the DVA rating was awarded within 12 months of the Service member’s separation."

This section is not well drafted in my opinion, but that aside, I would argue that they have to give a reason (other than, "we are different agencies") for varying from a higher VA award. To be sure, this issue will be going to court in the near future.
 
Jason said:
Not sure I understand the question. But, if you mean do they have to count the original award or the retroactive award (or if a later appeal results in an increase, with an effective date within a year of separation), I argue that whatever is most favorable to you should apply.

That is, just because it takes the VA time to process the case and appeals to be completed, does not change the fact that you have a VA award that is granted within a year of separation. Here is the applicable part of DoDI 6040.44, "Once obtained, the PDBR should compare any DVA disability rating for the specifically military unfitting condition(s) with the PEB combined disability rating and consider any variance in its deliberations and any impact on the final PEB combined disability rating, particularly if the DVA rating was awarded within 12 months of the Service member’s separation."

This section is not well drafted in my opinion, but that aside, I would argue that they have to give a reason (other than, "we are different agencies") for varying from a higher VA award. To be sure, this issue will be going to court in the near future.
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That's the bare nuts of the case Jay, I'm with whomever wants to take it to court as well. My interpretation of the policy is the same as yours. I actually thought my PTSD was going to be added in along with my GERD and back. That was, I thought, the PDBR's mission in the first place!
 
So, now that my decision has came back as a denial I believe my wife will go the other route.

As soon as she gets a VA rating we will go to the board of mil.

I can't see 2 people in the same family going down this route.

Keep faith everyone else. Keep fighting retirement failures!
 
My experience with the BCMR(s) of the various services is that they are the least likely board to reverse a decision of the Armed Forces. They appear to made up of civilians who act as virtual rubber stamps for the US Armed forces. Not to bust your bubble but I think the whole deck on this thing is stacked from the top to bottom. The Civilians on the BCMR(s) seem to think it is their job to justify Military decisions and not to be an impartial board of review. I think in the case of appeals for upgrades to disability discharges they may have granted around 3%. The whole problem seems to be once you sign off on your PEB/MEB all the BCMR is looking at, is if it was done according to regulations. They are not interested if it was correct according to the VASRD or even fair. As long as you signed your acceptance and your branch of service dotted their I (s) and crossed their T (s) during your discharge, then there is very little chance the BCMR will upgrade your discharge.
 
wilsonle61 said:
My experience with the BCMR(s) of the various services is that they are the least likely board to reverse a decision of the Armed Forces. They appear to made up of civilians who act as virtual rubber stamps for the US Armed forces. Not to bust your bubble but I think the whole deck on this thing is stacked from the top to bottom. The Civilians on the BCMR(s) seem to think it is their job to justify Military decisions and not to be an impartial board of review. I think in the case of appeals for upgrades to disability discharges they may have granted around 3%. The whole problem seems to be once you sign off on your PEB/MEB all the BCMR is looking at, is if it was done according to regulations. They are not interested if it was correct according to the VASRD or even fair. As long as you signed your acceptance and your branch of service dotted their I (s) and crossed their T (s) during your discharge, then there is very little chance the BCMR will upgrade your discharge.
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Yes, but it's not a one time deal. Has anyone had a positive experience with the PDBR yet?
 
Unless you want to consider a lawsuit either PDBR or BCMR is a one shot deal.....as far a I know...in either case.....taking em to court is your only option after they rule. I am pretty sure PDBR says you give up your option to BCMR and if you have appealed to the BCMR then the PDBR won't hear your case. (Unless you appealed to the BCMR prior to the 2008 policy change) after that date...your ass out...:(
 
i haven't heard anything from the PDBR yet but i don't see how in the world they can deny people if they are strictly using the VASRD and immediate VA ratings upon discharge to render a decision. This is a bunch of bullcrap. I am willing to join in on a class action lawsuit.
 
``(4) <<NOTE: Notification.>> With respect to any review by the
Physical Disability Board of Review of the findings and decisions of the
Physical Evaluation Board with respect to a covered individual, whether
initiated at the request of the covered individual or a surviving
spouse, next of kin, or legal representative of the covered individual
or initiated by the Physical Disability Board of Review, the Physical
Disability Board of Review shall notify the covered individual or a
surviving spouse, next of kin, or legal representative of the covered
individual that, as a result of the request or consent, the covered
individual or a surviving spouse, next of kin, or legal representative
of the covered individual may not seek relief from the Board for
Correction of Military Records operated by the Secretary concerned.

Per PDBR law above, once reviewed by the PDBR, you can't go to the BCMR. That only applies to issues the PDBR reviews. If the PDBR refused to address an issue, that issue can go to the BCMR. For example, the PDBR states a condition can't be reviewed by the PDBR because it wasn't looked at by the PEB. The fact that the condition should have been reviewed by the MEB/PEB can be taken to the BCMR.

Mike
 
Jason,Maparker or whoever

Could you please give me the DOD guidelines for rating asthma? I was rated by the military 10% and va 30%. I use asthamex daily and albuterol since being active duty. Do you think that I have a shot here with the board? Also PEB didnt not rate migraines which I later received 30% from VA. PEB only rated the asthma and ignored everything else. PDBR still has not received my VA records from the NYC regional office... What can I do? The PDBR has requested them 3 plus times according to the personnel that are working there.
 
Dear Friends:

1. I have to disagree with the comments about the BCMR/BCNR entities being a rubber stamp for decisions below.

2. While the Army BCMR and the Coast Guard BCMR are not very generous, the Air Force and Navy Boards have provided great results for me over the years in my practice.

3. Having said that, lets be clear- when you accept your findings, there is a presumption of regularity regarding the proceedings which you will only be able to over come if you can establish:

a. that there is new and material evidence not previously available to the agency below, such that had this evidence been available, the outcome would likely have been different ( your best bet on appeal).

- I just had two case where we accepted 30% PDRL a few years ago and had increases to 50% and 60% PDRL respectively, baed upon new and material evidence

b. the agency's original decision constituted a mistake of law- great appeal grounds if you have rebutted your findings, tougher to prevail on if you accepted them.

c. that a fraud was perpetrated upon the board.

4. The key- if you do not agree with your findings, do not, repeat not, accept them. Keep fighting no matter what.

5. Recognize one thing- the BCMR is a forum that is looking for errors in the record below. This is not really an area of law where you want to appear pro se and there are very few attorneys who regularly practice before these agencies.

6. If you want to retain cousnel, do so at the outset and not after receiving an unfavorable decision from the BCMR/BCNR. Once that happens, you have to show on a motion for reconsideration that you have new and material evidence that you could not have reasonably raised in your original petition. Good luck on that one!

7. After the BCMR/BCNR, your best venue is then the Court of Claims. However, this is more of an administrative review of the record below than a de novo proceeding.

8. Thus, your efforts before the BCMR/BCNR must be your very best, well-developed case on paper, as they very rarely grant live hearings.

9. However, they are not, repeat not, a rubber stamp for the agency. However, anyone petitioning for relief needs to have his or her ducks in a row. And, frankly, not every case filed with the BCMR/BCNR has merit.

10. That is why it is worth having someone with experience in this area review your case to see if it is worth the effort.


Best wishes,

Jack Gately
 
All,
Hubby called Randolph AFB today for an update. His case was forwarded to the board on the 5th of August, so they said we should expect a response in the next 60 days. Will let you know. Please keep us posted on your progress as well. Thanks!
 
maparker said:
``(4) <<NOTE: Notification.>> With respect to any review by the
Physical Disability Board of Review of the findings and decisions of the
Physical Evaluation Board with respect to a covered individual, whether
initiated at the request of the covered individual or a surviving
spouse, next of kin, or legal representative of the covered individual
or initiated by the Physical Disability Board of Review, the Physical
Disability Board of Review shall notify the covered individual or a
surviving spouse, next of kin, or legal representative of the covered
individual that, as a result of the request or consent, the covered
individual or a surviving spouse, next of kin, or legal representative
of the covered individual may not seek relief from the Board for
Correction of Military Records operated by the Secretary concerned.

Per PDBR law above, once reviewed by the PDBR, you can't go to the BCMR. That only applies to issues the PDBR reviews. If the PDBR refused to address an issue, that issue can go to the BCMR. For example, the PDBR states a condition can't be reviewed by the PDBR because it wasn't looked at by the PEB. The fact that the condition should have been reviewed by the MEB/PEB can be taken to the BCMR.

Mike
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Hey Mike,

Do you know the time line for this? The PEB never recognized my GERD or PTSD. It was in the Brief by my physician but looked over by the PEB.

This is so freaking confusing and frustrating!
 
jackgately said:
2. While the Army BCMR and the Coast Guard BCMR are not very generous, the Air Force and Navy Boards have provided great results for me over the years in my practice.
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I would agree with Jack that the BCNR seemed fair to me. I was able to get my release from active duty and transfer to the IRR changed to placement on the TDRL. I did this alone without a lawyer so it can be done if you have the right evidence.
 
Jwilliams61735 said:
Hey Mike,

Do you know the time line for this? The PEB never recognized my GERD or PTSD. It was in the Brief by my physician but looked over by the PEB.

This is so freaking confusing and frustrating![/quote

I believe that the PDBR will specifically focus on the disability that you were boarded from and compare with VA rating. The other disabilities that were on your med board will be looked into but only to see if they should have been considered unfitting at that time. Which I totally think it is a loop hole out for DOD to say that the other were not fitting at the time. Make sense? I truly think that there is only hope to getting the disability upgraded that you were originally boarded for, the other ones forget about it. I am hoping that is not the case, but I have already heard a few cases here that people got screwed including yourself. I applied early February and the PDBR doesnt even have my damn VA records yet???? Talking about frustrating!
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This is the CFR. Ratings begin in 4.71a but there is a wealth of information that can help you.

fdm

www.access.gpo.gov/nara/cfr/waisidx_03/38cfr4_03.html
 
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