What do I do now?

I am on the verge of tears. My results came back yesterday, I rated at 20% and severance pay. My primary diagnosis is moderate persistent asthma, my secondary was lower back pain. The 20% was for the back pain and I was rated at 0% for asthma. I have a 11 years in and a really wanted to continue and serve 20 years. I have never heard of a member being returned to duty after IPEB decided to separate them (this is after the formal board). I don't know if I should fight to stay in or to fight to get my asthma rated which I am surprised I got nothing for. I am on Advair 230/150 twice a day, a rescue inhaler, allergy shots and Xolair. I am profile for no running because the Dr. off base wouldn't release me from my profile because my PCM never put me on the recommended medication. I have so many questions and this is stressing me out to no end.

Question:

1) According to the pamphlet I cannot contest the rating I was given by the military, is this true?
2) Can I fight to stay in and try to get compensated for my asthma by the military? Or is it an either or situation.
3) I get can get legal representation for free. I just question, how much effort a lawyer provided for free would put in when they probably have 4 other service members as clients?

Please help!
 
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Bpark, I'm sorry for spilling my emotions on the thread there is just a lot going through my head. To my knowledge I am not in shortage career field, so if Sascha is right. I would be fighting a losing battle.
 
I just hit 11 years last month. Numbness and tingling is documented in the narrative but I have never taken the test you mentioned. My diagnosis that went up was moderate persistent asthma and lower back pain. The asthma came back at 0%, so I am guessing that is not failing and my back at 20% which they are considering as my failing condition.

It is the asthma that stopped me from running and I can't take the walk test because the rescue inhaler and I am on C2 code for it...but they didn't consider it failing
 
KaySweet said:
I just read the post about refills. I get all my refills at one time. When those are done. I have to go to the doctor see them and get a whole new prescription in putted. They would see the new prescriptions every 90 days or so and the changes in the medication.
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Just because its there it does not mean they saw it.

For example, after my independant evaluation, in May, where the doctor agreed with me and wrote a memo that the loss of function in my shoulders was clearly neurological; the idiots still claimed it was not. They based their claim because, in my medical records, a doctor in March speculated that I had adhesive capsulitus and would benefit from physical therapy. Had they kept reading through the records, they would have seen that not only did the doctor I saw in April confirm that the loss of ROM was neurological, but that I had completed physical therapy.

Take the records to the soldiers council; they should file the appeal with no problem.
 
Wow, I promise you I kept saying there is stuff missing in my records that were being sent up. I kept being told that IPEB counsel had access to my record and they will go into it and get more info to base their rating on if it was decided that I should be separated. From what I am understanding that was a lie...why am I not surprised?
 
Agreed, take all the records to MEB counsel, show the VASRD definitions to them, and they will fight for your proper %.
 
KaySweet said:
I just hit 11 years last month. Numbness and tingling is documented in the narrative but I have never taken the test you mentioned. My diagnosis that went up was moderate persistent asthma and lower back pain. The asthma came back at 0%, so I am guessing that is not failing and my back at 20% which they are considering as my failing condition.

It is the asthma that stopped me from running and I can't take the walk test because the rescue inhaler and I am on C2 code for it...but they didn't consider it failing
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I would suggest going to the FPEB and fighting to have the Asthma recognized as a failing condition. AT 20% you have nothing to lose. Before you go get the EMG and Nerve Conduction study done on your legs; If a radiculopathy shows up fight to have it added as a failing condition. If it doesn't show fight to have Sciatica added for both legs. It should be added as a result of your lower back condition; so instead of having its own entry, it will show the lower back condition with either radiculopathy or sciatica and you will get the additional percentage from the VA; PEB will then adjust their ratings. It should be 10%, for each leg, just for loss of sensation/pain.
 
My documents say FEV-1 greater than 80% predicted. But my PFT on 3/9/2012 says

FEV1(L) PRE BD

Actual 1.80
Predicted 2.60

% Predicted *69
Actual *1.48

Challenge % Predicted- *57
Actual *1.66
Post-BD % Pred- *64

This is what was sent up
 
KaySweet said:
Wow, I promise you I kept saying there is stuff missing in my records that were being sent up. I kept being told that IPEB counsel had access to my record and they will go into it and get more info to base their rating on if it was decided that I should be separated. From what I am understanding that was a lie...why am I not surprised?
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Ombudsman told me, when I complained, that its the PEBLO who actually looks through the records. I suspect many PEBLOs lie to us about who screws up paperwork so we don't go off on them.
 
Robert, i looked up the terms you posted above and light bulb went off. When I went to see my spine specialist I told him the facet injections were wearing off back in July. He offered another round of facet injection (but warned me against it due to my age) or burning the nerves he said that it would provide longer relief for me. I didn't go ahead with the surgery because I wanted to stay in and I felt another surgery on my back would definitely cause them to cause them to separate me (the things we do to stay in) and I was going through an MEB and they tell you, you cannot get surgery while the process is going on. I will get with my PCM to get those test scheduled but she will probably tell me that I do not need them.
 
Am I suppose to do a one-time consideration or a formal board. You can't do both, can you?
 
Two thoughts here:
1) If you want to be retained, do as others have advised and seek legal council, make sure all you med records and docs are in order and request an FPEB. Realize, though, that the FPEB may actually reevaluate the asthma and end up still deeming you unfit, but re-engaging with the VA to re-rate the asthma. This may lead the FPEB to bump your ratings up and med retire you.

2) With force shaping/RIF, etc., on top of medical conditions that prevent you from PT, deployment or accomplishing you job, you are fighting a tough battle to stay in. I'm not saying not to fight it (I'm a fighter by blood), but just try for the best possible outcome, and prepare for the worst. I feel your pain...I'm approaching 19 years now, my dad did 30 Marine Recon and we had a little competition going on who would hang in there longer.

Bottom line here is, whatever you do, do not accept severence...you have 30% minimum (retirement vs severance pay...big difference), all you need to do is present your evidence and you should get what you need. Remember that the VA has over 1 million cases at any given point, and all the PEB's are slammed as well...quality control is not optimum right now.;)
 
If I ask for a reconsideration and the VA changes it will that automatically up my percentage on the military side?

Secondly, can FPEB decrease my rating for back if I fight for the asthma? I'm just wondering because I know people have been screwed over with this whole process?
 
Robert Albright said:
How close are you to the 12 year mark? They have to retire you at the greater of disability percentage or longevity. If you hit 12 years you will have hit 30% under longevity.

I was rated at 50% Army and 70% VA, but went to the FPEB to fight because I had developed new injuries and wanted them rated. I also had injuries sustained in theatre that they had not listed as 10AC for combat special compensation. I was not worried about them trying to reduce my percentages because I had twelve years for longevity. So I fought and won; still waiting on my new percentages.

The military lawyers here at JBLM are decent. When you meet with an attorney, take in your medical records showing the severity of your asthma. The thing to remember is that no one is going to look through records unless you bring them to them. Once you give them the evidence you need, its no problem getting them to draft the memorandum requesting a VA reconsideration. If the VA increases your rating, the PEB has to increase your rating. PEB does not assign percentages, they just determine whether or not the condition is failing.

Is your asthma listed as a failing condition?

Do you have any pain or numbness radiating down your legs? If so have an EMG/Nerve conduction study done. A confirmed radiculopathy can add at least 10% to your rating for the lower back.
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I have to ask Robert, where did you get the information about the longevity? Now days you can still be separated w/severance all the way up to 19yrs and 6mnths.
 
KaySweet said:
If I ask for a reconsideration and the VA changes it will that automatically up my percentage on the military side?
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This is a good question, maybe soembody here has the answer. I would think that a memo and updated proposed ratings package from the VA to the IPEB would work, but I'm unsure.

KaySweet said:
Secondly, can FPEB decrease my rating for back if I fight for the asthma? I'm just wondering because I know people have been screwed over with this whole process?
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From what I understand, the FPEB can't reduce ratings, but they can change conditions between categories. Your best bet would be to contact the ADC at Randolph and ask them, they are there for those of us that are in the PEB system and could probably give you good guidance. However, don't limit yourself to just one resource...there are a few attorneys here on the forum that can help as well. Your JAG can help if you want to talk to somebody local.
 
usafaviator said:
This is a good question, maybe soembody here has the answer. I would think that a memo and updated proposed ratings package from the VA to the IPEB would work, but I'm unsure.



From what I understand, the FPEB can't reduce ratings, but they can change conditions between categories. Your best bet would be to contact the ADC at Randolph and ask them, they are there for those of us that are in the PEB system and could probably give you good guidance. However, don't limit yourself to just one resource...there are a few attorneys here on the forum that can help as well. Your JAG can help if you want to talk to somebody local.
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If VA changes the rating it's automatically updated on DoD side; provided it was an "unfit" condition. As far as FPEB lowering or changing a %, I think Aviator is spot on here. The VA makes the % determintaion. Therefore it's more likely the FPEB would have an effect by changing an unfit to fit, vice versa, or adding other conditons rather than reduce a rating.
 
Sascha Roberson said:
I have to ask Robert, where did you get the information about the longevity? Now days you can still be separated w/severance all the way up to 19yrs and 6mnths.
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Don't know where you are getting your information; but I confirmed mine with my attorney prior to the FPEB around the 15th of September.
 
KaySweet said:
Robert, i looked up the terms you posted above and light bulb went off. When I went to see my spine specialist I told him the facet injections were wearing off back in July. He offered another round of facet injection (but warned me against it due to my age) or burning the nerves he said that it would provide longer relief for me. I didn't go ahead with the surgery because I wanted to stay in and I felt another surgery on my back would definitely cause them to cause them to separate me (the things we do to stay in) and I was going through an MEB and they tell you, you cannot get surgery while the process is going on. I will get with my PCM to get those test scheduled but she will probably tell me that I do not need them.
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Don't believe them when they tell you that you can't have surgery. I had a left cubital tunnel release on the elbow in May and am having a right cubital tunnel release tomorrow at 10:30 am. A friend of mine's commander kept him from having surgery on his foot and almost got relieved after my friend went to the IG. End result he got his surgery rescheduled.
 
Robert Albright said:
Don't know where you are getting your information; but I confirmed mine with my attorney prior to the FPEB around the 15th of September.
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Robert. The only way retirement is guaranteed is if you are approved for TERA or other early retirement, 20+ years, or receive a 30% or greater rating from the PEB(Chapter 61 retiree). I understand what you getting at with LOS vs. DoD%, but understand if you aren't "retired," you receive severance. LOS doesn't guarantee a % from the PEB, it is used for pay computation. You receive the higher of the two (LOS or PEB%) if retired.......
 
usafaviator said:
This is a good question, maybe soembody here has the answer. I would think that a memo and updated proposed ratings package from the VA to the IPEB would work, but I'm unsure.



From what I understand, the FPEB can't reduce ratings, but they can change conditions between categories. Your best bet would be to contact the ADC at Randolph and ask them, they are there for those of us that are in the PEB system and could probably give you good guidance. However, don't limit yourself to just one resource...there are a few attorneys here on the forum that can help as well. Your JAG can help if you want to talk to somebody local.
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What I was told, prior to the FPEB, was that if I appeared before the FPEB "everything was on the table". The morning of the FPEB I was threatened, through my attorney, by a member the FPEB.

The threat was that if I appeared before the FPEB, they would tell the VA that they felt that my ROM in my neck, one of my failing conditions, had improved. The FPEB itself can't lower the percentage per se; but they have a duty to inform the VA of any changes in your condition.

At the board, I pointed out that nowhere in my records had any doctor, military or otherwise, examined me with a goinometer or annotated that the actual degree of flexation ect. had improved.

When they questioned me about the entry in my medical records, regarding an alleged improvement in my neck ROM; I informed the members of the board that in February, I had contacted my US Senator and complained, that despite my injuries, my Primary Care Provider refused to complete a packet to send me to a WTU.

My PC then retaliated against me by diagnosing me with malingering, reporting me for SSDI fraud, and entering false statements in my medical records. The most glaringly false statements was that he claimed that I demonstrated full ROM in my neck, and that I had no radiculopathies. After I found this in my records, I paid a civilian doctor to conduct another series of EMG/NCS. I knew that I would need to conclusively prove that I did indeed still have the previously diagnosed radiculopathies and that they had not improved. Social Security also investigated and found that my condition had actually deteriorated. Got my medicare card yesterday.

After I presented the evidence to the board, they pretty much took my word on the neck ROM. After all, I have two synthetic discs in it. They even conceded 10AC based on evidence I presented. I have to admit I was impressed with the fairness and professionalism of the board. Not only did they listen. I could tell that they were not happy with my PCs actions.

My military attorney has told me that the PEB must now change their percentages based on what the VA finds when you have requested a VA reconsideration. That's another reason I chose to fight. I had evidence of two radiculopathies that were not detected until after the MEB; even if I lost the battle over my neck ROM, I felt that by adding the two new radiculopathies, I would more than make up the difference of any loss.
 
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