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usnpaprpusher
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usnpaprpusher
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Jun 14, 2007#1
Was a recalled OEF Navy Reservist and was injured on AD in 2001, the MEB has just recommended a 20% disability which the informal PEB agreed with. Ive requested a formal PEB and will go in July. The 20% will give me a severance based on two years.
Since I am a reservist, my center sent my paperwork to a Medical Retention Review board. It should have been sent to the MEB/PEB process instead. The MRR was started and not completed but I have the actual hard copy paperwork that the Navy would grant me a special retirement since I had over 15 years as a reservist.
Is there any hope of getting a special 15-year retirement from the formal PEB? Will they look at that reserve time? Haven't spoken to my assigned JAG yet about my case. Also how fair are the JAGs? It would seem they would be more on the side of the Navy vs. the servicemember fighting for the 30%.
Any advice or comments on the 15 year retirement and JAG question would be appreciated.
brianwl
7,06711
brianwl
7,06711
Jun 14, 2007#2
Here's the thing your looking at, in one hand you have a retirement already handed to you. In the other there is the possibility of fighting for and winning the 30% Disability Retirement since you're already at 20%.
If you take the severance you don't keep the money. VA will deduct it from your VA compensation once you're rated.
If you get the Disability Retirement you don't get to keep the money either, but you do get to keep the other retirement benefits.
If the 15 year retirement is considered as a 20 year retirement then you will be eligible for CRDP and CRSC. I'm guessing that since you are reserve you won't see your retirement pay until age 60, right?
As for the JAG question I think there are some good JAG's out there who do fight for the troop. But it's a case of you get what you pay for. Not to mention who's writing their performance report.
You can check with DAV, there's been some rumblings about them offering pro-bono lawyers and services for folks going through the PEB.
Brian
E-6 USAF Ch 61 Ret
70% SC
Brian
USAF Ret
"A veteran - whether active duty, retired, national guard, or reserve - is someone who, at one point in his or her life, wrote a blank check made payable to The 'United States of America', for an amount of 'up to and including my life.'" (Author unknown)
"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government."
~ Thomas J
JADMP
331
10 Year Member
JADMP
331
Jun 15, 2007#3
A few thoughts. Generally speaking, the PEB's only make recommedations regarding fitness and once they find a servicemember unfit, they make a recommendation as to what percentage the servicemember is disabled. If you are eligible for a special retirement (not sure what program you are referring to), you will get it.
As to years in service, for eligiblilty for reserve retirement they will look at all your years in reserves. For things such as the eight year rule, or computation of severance pay, they look at total active federal service.
As to JAG's, I have a few thoughts. For full disclosure, I am a former Army JAG. I used to represent Soldiers at the PEB. Your question raises a few issues. First, as to duty of loyalty. I can tell you that in the Army, I never saw any pressure whatsoever to not try for the maximum rating at the PEB. In other instances, Brian is right, there is pressure to "do what the command wants." However, remember that the JAG's do not work for the Board, they work for the Staff Judge Advocate. And to be completely honest, most SJA's just don't care too much about the PEB to put any pressure on the lawyers. Usually, their Base Commander has bigger fish to fry and the PEB is not that high a priority. So, I would not worry about loyalty to you as a client.
The second issue, though, is competence. How competent are the JAG's? As I have explained elsewhere, the PEB is not a high profile job in the JAG Corps. Usually, it is a job assigned very early in a Judge Advocate's military career. And often, the JAG cycles through the job in about a year. So, you often have very young attorneys who may not know much about the military themselves. This is especially true of direct commissioned officers. But, if they have been doing the job for more than three months, the JAGs usually have a lot of experience. It would not be unusual for them to have handled upwards of 50 cases by that point. Given that it is relatively rare for civilians to practice in front of the Boards, the JAG attorney probably knows a lot more about the local Board than the average civilian attorney. But the story does not end there. A truly competent attorney is not only aware of the way to maximize your chances at the Board, but is also focused on identifying the legal errors made through the proccess to give you the best chance of succeeding on appeal should you be unhappy with the Boards findings. This is something most JAGs do not have much experience with and they are unable to assist you in appeals past the Disability Evaluation System. So, there is something to be said for hiring a civilian.
I advise the same thing to everyone. Talk to a number of attorneys. See how comfortable you are with them. For civilians, compare fees and see who has recent experience. Ask them what they think you should be rated at and why. If they can't articulate a good reason, they probably are not that good.
Good Luck.
Jason
"I am not providing legal advice, only information. An attorney client-relationship will only be formed by agreeing to such a relationship in writing. Consult a qualified attorney if you have questions."
Physical Evaluation Board Forum
usnpaprpusher
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usnpaprpusher
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Jun 15, 2007#4
Thanks for the info, Brian & JADMP. Is the Medical Retention Review 15-year retirement decision null and void since its an AD injury? The MRR stopped their 15-year retirement decision and my medical case was sent on to the MEB/PEB. So thats why Im worried. My severance is being based on 20% at two years AD time and the 15+ years in the reserves is out the door.
Again, thats why Im worried. Am I still entitled to the 15-year retirement? Do I tell the formal PEB I dont want the 20% but rather the retirement? Yes, I would get the 15-year benefits at age 60.
I just dont want my reserve time to go down the drain. I just dont know what to do.
JADMP
331
10 Year Member
JADMP
331
Jun 15, 2007#5
Two thoughts. Consider trying to get found fit. If you are found unfit, consider an application for Permanent Limited Duty (PLD). Even if unfit, you may be able to complete 20 years of service. You can read about that here: doni.daps.dla.mil/Directi...850.4E.pdf (look in Enclosure 6).
Jason
"I am not providing legal advice, only information. Talk to your military attorney or retain your own civilian counsel if you want to form an attorney-client relationship."
www.pebforum.com
Jason
"I am not providing legal advice, only information. An attorney client-relationship will only be formed by agreeing to such a relationship in writing. Consult a qualified attorney if you have questions."
Physical Evaluation Board Forum
usnpaprpusher
134
usnpaprpusher
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Jun 15, 2007#6
Neither thought will work. I'm a non-drilling reservist who can't run the PRT for ANY reason because of strict instructions by my ortho doc so never will be found fit. Just waiting for the PEB hearing and I'm out the door one way or another. Can't re-enlist in the reserves to make it to 20 and not enough extension months either to make it to 20.
JADMP heres the info on the 15-year Navy Reserve retirement:
BUPERINST 1001.39E
2003. Reserve Service Requirements to Qualify for Non-Regular Retirement
1. Unless otherwise provided by law, a reservist must have completed 20 years of qualifying service to be eligible for non‑Regular service retired pay, at or after age 60. The last 6 years of such qualifying service must be in a reserve component for members who have earned 20 or more years of qualifying service on or before 24 April 2005. There is no requirement that the last 6 years be continuous service. For members who complete 20 years of qualifying service on or after 25 April 2005, the last 6 years of qualifying service in a reserve component is not a requirement to qualify for non-regular retired pay.
2. The 20-year requirement has been reduced to 15 years for certain selected reservists determined to be NPQ/unfit. To be eligible for this early retirement the member must
a. meet all other requirements of law for retirement (see 10 U.S.C., chapter 1223).
b. be member of a Selected Reserve component.
c. be determined NPQ by NAVPERSCOM (PERS-491) as recommended by BUMED.
d. be approved by NAVPERSCOM (PERS-49).
As always, appreciate input from all here. This truly is a great site. Thanks much to all.
JADMP
331
10 Year Member
JADMP
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Jun 15, 2007#7
Are you eligible for that early retirement? It says you must be a member of a Selected Reserve component. I wasn't clear about your non-drilling status (i.e., is it because of your injury or are you in IRR?).
What are your conditions? Are there any that affect your duty performance that they did not consider? Jason
"I am not providing legal advice, only information. Talk to your military attorney or retain your own civilian counsel if you want to form an attorney-client relationship."
www.pebforum.com
Jason
"I am not providing legal advice, only information. An attorney client-relationship will only be formed by agreeing to such a relationship in writing. Consult a qualified attorney if you have questions."
Physical Evaluation Board Forum
usnpaprpusher
134
usnpaprpusher
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Jun 16, 2007#8
Yes, am a member of a Selected Reserve component. Was placed in a non-drilling status due to injury.
MEB's recommendation, "Member's medical condition interferes with the reasonable performance of assigned duties and on that basis the case is referred to the Physical Evaluation Board for fitness for duty determination. Until final decision is made by the board, member is not to engage in any PRT, running, heavy lifting, prolonged walking, standing, crawling or entering any areas where injury might pose a danger to self or others. Additionally member is not to be deployed aboard ship or sent to any remote area."
JADMP
331
10 Year Member
JADMP
331
Jun 16, 2007#9
What about the specific conditions? What did they find medically unacceptable?Jason
"I am not providing legal advice, only information. Talk to your military attorney or retain your own civilian counsel if you want to form an attorney-client relationship."
www.pebforum.com
Jason
"I am not providing legal advice, only information. An attorney client-relationship will only be formed by agreeing to such a relationship in writing. Consult a qualified attorney if you have questions."
Physical Evaluation Board Forum
usnpaprpusher
134
usnpaprpusher
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Jun 16, 2007#10
Med Board findings: Diffuse left knee pain history of multiple arthroscopic surgical procedures left knee with Grade IV chondromalacia of the medial femoral condyle and medial tibial plateau.
Ive had four left knee surgeries, 1st on AD in 2002, was not released from my ortho dr. but Navy discharged me all the same (surgery didnt help). Wasnt sent to through the MEB/PEB process then & didnt get fixed either.
After raising a racket, got 2nd left knee surgery (2003) through an NOE through Reserve side (surgery didnt help). Third (2004) (knee better, but not great) and fourth (2006) (knee slightly better, but still not great) through my civilian health insurance plan (same plan before I was mobilized). Before the 3rd and 4th a VA ortho dr. looked at my knee and said, Ill go in if you want, but dont know what Im looking for. I didnt have a warm and fuzzy over this remark so opted for my civilian health insurance.
My AD injury also included damage to the femoris biceps and pernial nerve, which is in my medical record. I was seen many many times on AD for the pain to the femoris biceps, and nerve damage (which has caused neuropathy in my left foot), but the MEB/PEM didnt address these in the findings. Again, all of this is well documented in my AD medical record and subsequent civilian health records of which they have copies. In my Reconsideration letter to the informal PEB I requested they review these, but they didnt and now its in the hands of the formal PEB.
Im looking at future surgeries of right knee (problematic because of overuse), nerve debridement and a left knee replacement.
JADMP
331
10 Year Member
JADMP
331
Jun 16, 2007#11
Did they give you a limited range of motion (ROM) on the knee? Or are they only discussing pain? What code did the IPEB rate you under? 5299-5003?
As to the nerve damage, I see two issues. Is it unfitting? In order for it to be considered, you must have evidence that it kept you from doing your job. Given your PRT limitations from ortho, they may not have accurately captured how this condition affects you. If you have functional limitations due to this condition, you need to try to gather evidence how it keeps you from performing. A statement from your CO or supervisor stating how you were kept from performing your duties due to nerve damage (separate from the knee pain) would be a good piece of evidence. The next issue is getting it rated. Usually you need an EMG/Nerve Conduction study to document the degree of disability. Missing either a finding of unfitness or having an objective exam on the nerve damage means you will not get rated (one caveat, if you can show it as unfitting, you may have grounds to get your case recessed while they gather the tests; focus on the unfitting part first, that is where you will get more bang for the buck out of your efforts).
Obviously, I am making some informed guesses, I hope this was helpful. One other thing, remember the Navy looks at your condition at one place in time, the VA looks at the process over time. If you get the knee replacement, you will get a minimum of 100% from the VA for a year under code 5055. Good luck.Jason
"I am not providing legal advice, only information. Talk to your military attorney or retain your own civilian counsel if you want to form an attorney-client relationship."
www.pebforum.com
Jason
"I am not providing legal advice, only information. An attorney client-relationship will only be formed by agreeing to such a relationship in writing. Consult a qualified attorney if you have questions."
Physical Evaluation Board Forum
usnpaprpusher
134
usnpaprpusher
134
Jun 17, 2007#12
Jason in answer to your question:
MED Bd Findings:
ICD-9-CM
717.7 - chondromalacia of patella
729.5 Pain in limb
782.0 Disturbance of skin sensation
ROM, 0-135 degrees limited only by body habitus with flexion
An EMG was done by my civilian doc. (not on AD); finding mild neuropathy. Copies are in my med record.
AD fall happened while coming off watch. Fell from a flight line tower ladder, hit concrete initial impact was to the side of my leg (femoris biceps region) then bounced on my knee. Always mentioned the pain in the biceps area during Base medical appointments, but nothing was ever addressed by the military doctors. Too complicated or overlooked? It was finally addressed by my present civilian ortho. dr. during the 3rd and 4th surgeries.
Since Im not drilling any longer, my CO has no idea how the biceps damage has effected my military job so Ill ask my present manager to draft a statement on my behalf. Just this past week, I had to attend a conference and was standing for too long. By evening, the pain was horrible, took a pain pill which didnt agree with me and missed work the next day. Id rather live with the pain than have the side effects of the pain killer. Have had several other civilian work related and home life instances when I cant function due to the biceps pain. Will also get statements written how my quality of life at home has been affected.
Again, do you see the formal PEB looking at my 15+ years reserve time since I'm at the 'magic' 15-year mark as far as retirement from the Reserves?
Jason, I sincerely appreciate your comments and remarks. 
Ill post my the final outcome. Thanks again!
JADMP
331
10 Year Member
JADMP
331
Jun 17, 2007#13
Did they rate the knee pain and the leg pain separately at IPEB. That is did you get two 10% ratings or one 20%?
Based on the EMG being done, I think they most likely did not rate the neuropathy because they did not find it unfitting.
Remember the unfitting has to be against your grade and MOS. What is your MOS? Since you are not drilling, you need to document similar things in your MOS that you are not able to do. If your MOS involved carrying things for example, you need to document how you are currently unable to carry anything over a certain weight of object that you normally would carry. The standing too long at the conference anecdote is okay, but the response could be "that is a pain issue different from a neuropathy issue. Also, you were able to complete the conference. Pain medication side effects can be overcome by using different meds or therapies. Missing work the next day is not a permanent condition. Thus all of this does not indicate unfitness." A better example would be something that you just cannot do now. In the Navy, I imagine going up and down stairs, moving in tight quarters, etc. would be a common MOS requirement. If you can't do those things get that documented. You can also get documentation from Physical Therapist about functional limitations due to this.
Also, don't worry about quality of life statements. They may be very important to you, but that is not the criteria for ratings. I think you have a very strong case for getting rated for this, you just need to gather the right evidence.
From the Navy BUPERSINST 1001.39E, it appears they are talking about non-regular retirement, so yes, they will count your reserve time.
Jason
"I am not providing legal advice, only information. Talk to your military attorney or retain your own civilian counsel if you want to form an attorney-client relationship."
www.pebforum.com
Jason
"I am not providing legal advice, only information. An attorney client-relationship will only be formed by agreeing to such a relationship in writing. Consult a qualified attorney if you have questions."
Physical Evaluation Board Forum
RM1USNR
461
RM1USNR
461
Jun 18, 2007#14
usnpaprpusher,
I am sorrry shipmate you are having to jump through so many hoops n this process. I am not a expert like many on this board but I can tell u that I just to the whole Navy Reserve MEB process over the last year due to Type 2 Diabetes/Hypertension.
Had 11 Active USN & last 7 USNR and then I got six..BUMED placed me also in a non-drilling status n Jan 07 awaiting final decision. They have 5 Classifications BUMED may recommend. I was placed in Four for 9 months..U can still drill but it is all up to your unit CO recommendation.
Later I was found Class 5 fm BUMED AND SECNAV followed the medical dept recommendation...They provided 3 option: seperate,retire if elgible(15 yrs and over), or request a PEB.
The 15 year retirement is counted as if you have completed 20 yrs so I think it makes u able to get Concurrent Receipt later at age 60 as Brian mentioned earlier n notes above.
Here are two links I have provided below:
buperscd.technology.navy....100139.pdf
Physical Risk Classification for Officer and Enlisted Personnel on Inactive Duty.
MILPERSMAN 6110-020
buperscd.technology.navy....10-020.htm
I hope my little info can be some help.
Mike
Jun 18, 2007#15
For:
buperscd.technology.navy....100139.pdf
Go to Chapter 2.
usnpaprpusher
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usnpaprpusher
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Re: Reserve Retirement @15 years vs. Informal PEB @ 20%
Jun 18, 2007#16
Jason - Rated by the informal PEB just 20% on knee alone, nothing on the leg (femoris biceps or nerve damage) injury.
RM1USNR Another reserve shipmate that can relate, although my medical issue was an AD injury. Heaven forbid if you get injured as a reservist after getting recalled! Wouldn't wish it on my worst enemy! Hope your diabetics is under control.
Thanks to you both for your input.
RM1USNR
461
RM1USNR
461
Jun 18, 2007#17
usnpaprpusher,
Staying on them bro..I feel you on the reserve thing...This was something(Reserves) was something I really hated...If I had not completed 11 yrs of active duty it was no way I would have put with this Reserve crap...The leadership is just not there like the active side..The bad thing about the Reserves is that no one really knows anything when issue like yours come to light and nobody seems to care.
It is like all jobs when u are broke u are no longer needed. Stay the course and listen to some of these experts on this board..These fellow service mbrs no their stuff and don't mine helping.
Fair Winds and Following Seas Bro.
Mike
