Active injuries do not count in the line of duty for medical retirement

Cherk42

Registered Member
#1
I am a reservist who was on active duty for 8 years where I deveolped migraines and PTSD. VA rated me at 100%. After my active duty time I joined the Air Force reserves with no break in service. Recently the VA started sharing records with the AF reserve medical. When they saw my medical history they started the MEB process. What is alarming is that my reserve unit is saying the medical conditions that happened while on active duty are not considered in the line of duty once you transition to the reserve component. Keep in mind I was active duty the first 8 years of my career, where the PTSD and Migraines originated. The latter part of my career is only reserve where I just completed my one weekend a month and two weeks a year (no deployments or orders over 30 days). Bottom line up front, my reserve unit is trying to medically seperate me with no benifits even though my medical problems happend while I was in an active status. Does any one know if this is correct?
 

Cherk42

Registered Member
#3
So, I currently have to be on active orders? Or I had to have been on active orders at some point in my reserve career? I am not on active orders. I am in the process of submitting an Line of duty determination saying my reserve time agrivated my PTSD and Migraines.
 

gsfowler

Staff Member
PEB Forum Veteran
#4
Yes, in order for the eight year rule to apply, you must be on active duty orders for greater than 30 days when the MEB is initiated. The eight years do not have to be consecutive.

Unfortunately, you are going to be fighting quite an uphill battle. When you left active duty and joined the reserves, you were basically considered to be fit for duty (I know this may not make sense to you, since you filed for and were granted VA benefits).

Your best bet is to try to get a LOD yes for the conditions to have been aggravated by reserve duty, however this is going to be difficult, as there is no real way to delineate whether or not the aggravation occurred during weekend drills or annual training, rather than your civilian life.

I wish you good luck in this process and really hope it works out for you.
 

Cherk42

Registered Member
#5
Let me ask you this. Things started to go down hill for me when I was on annual tour to GTMO. I was incharge of the prison budget when I was in Afghanistan and toured the prisons getting all sorts of bodily fluids thrown on me. The same happend at GTMO. It trigered an anger that I cannot control. Simce that incident, I had to start taking medication for the anger and the nightmares.
 

gsfowler

Staff Member
PEB Forum Veteran
#6
Let me ask you this. Things started to go down hill for me when I was on annual tour to GTMO. I was incharge of the prison budget when I was in Afghanistan and toured the prisons getting all sorts of bodily fluids thrown on me. The same happend at GTMO. It trigered an anger that I cannot control. Simce that incident, I had to start taking medication for the anger and the nightmares.
I can completely understand how this would be a challenge.

Where the difficultly may lie is that it will be assumed that when you left active duty to join the reserves, you might have checked all of the boxes that state you do not have any medical issues.
 

Cherk42

Registered Member
#7
I just looked through my records, and no such list exists. I did get a lawyer yesterday, so they should be able to ensure everything is done correctly. Thanks for your advice.
 

gsfowler

Staff Member
PEB Forum Veteran
#11
And we thought the PDHA was to help us!
Most service members view it as an inconvenience and fail to disclose any injuries which occur on active duty. Typically there would be a survey conducted at the conclusion of any deployment, as well as at the end of any active duty period.
 

Cherk42

Registered Member
#12
I do have a DD214, and there is nothing on it that has to do with medical other than it askes if I has a complete dental exam. I did disclose my injuries to the AF Reserves because I gave them my full medical records. They specifically said to me "your medical records are very thick".
 

fr233

Registered Member
#15
I don't think this is an eight-year rule issue. He isn't trying to say that some previously undiagnosed issue from AD should now be in line of duty. He wants a LOD for a diagnosed issue from AD.
I faced the same thing from my NG unit. Fought them for a year before they finally broke down and gave me the LODs. Injuries from AD is in line of duty. Just because the active component doesn't do LODs (and AD MEBs don't require them) doesn't mean that a reserve component MEB can suddenly require them, while at the same time refuse to do LODs from AD, and screw the soldier in a catch 22.

10 U.S. Code § 1216a:
“(b)Consideration of All Medical Conditions.—
In making a determination of the rating of disability of a member of the armed forces for purposes of this chapter, the Secretary concerned shall take into account all medical conditions, whether individually or collectively, that render the member unfit to perform the duties of the member’s office, grade, rank, or rating.”
https://www.hrc.army.mil/content/Army%20Physical%20Disability%20Evaluation%20System%20PDES
Army Physical Disability Evaluation System PDES:
“You must ensure that all medical conditions are accurately and completely listed on the forms provided during the physical examination. The examining physician will address those additional conditions, document findings and, if appropriate, refer you to additional specialists for further evaluation. This may result in additional medically unacceptable conditions being referred to the PEB.”
AR 635-40, Physical Evaluation for Retention, Retirement, or Separation, 08 February 2006, para. 4-19.g.4 states:
“If the case is lacking an LD determination and it does not fall into one of the above categories, the PEB will conditionally adjudicate the case as if a favorable decision has been made. The applicable advisory statement described in para 4–19l(2), will be included on the Form 199. The Soldier will be informed of the conditional processing and advised that final disposition by HQDA will be held in abeyance until the LD decision is resolved.”
US code and army guidance clearly say that ALL medical conditions will be accounted for. AR 635-40 clearly has provisions for evaluating injuries without LOD.

My NG unit fought me tooth and nail until I told them no matter what the unit decided with the LODs, I had documentation establishing that the injuries originated in AD, and I was going to bring it up in the PEB. The PEB would then compel the unit to do LODs.

My LODs were started within a week.

I know the reg is army, but disability regs seem pretty uniform across the board.
 

FloridaInjuredInCombat

PEB Forum Veteran
Registered Member
#16
In my case I sustained a severe spinal injury on AD for a combat deployment in 2005, even though I was treated for months on AD, no LOD was initiated.

Post Deployment, released back to the ARNG with no break in service, and in 2006 underwent two major spinal surgeries and 8 months out of work, with no support (not one dime) from the ARNG/Army/VA.

Scroll forward to 2013, my original spinal injury (2005) deteriorated to the point of needing a third major surgery, an I have been unable to work since 2013. In late 2013, ARNG put me in for an MEB, stating that the injuries were NOT in the LOD, their intent being to discharge me without benefits nor medical care.

I fought for an LOD, dating it back to 2005. A key part of this fight was a nexus letter from the original surgeron (2006) stating that the current injury is the SAME injury. With that and nearly a year of fighting tooth and nail, the ARNG finally produced the long (8 years) LOD as IN the LOD.

That was KEY in the MEB/PEB process, I can't state that enough, you need the LOD for that specific injury, and when it happened is not as important as that it happened IN the LOD.

There is a difference in the ARNG vs. the Air Force NG or Reserves, in that there's an AFI that states an Airman must declare his LOD injury within "x" time for it to be considered. You will have to research this, and see how it applies to you specifically.

After a year and a half of the MEB/PEB process, I was Medically Retired from the Army (ARNG) with full benefits and medical (Tricare) insurance, equal to that of an AD Medical Retiree.

It's worth the fight and the leg work to get a nexus letter from the original AD treating physicians if possible, and along with any and all supporting medical / treatment / service records that support your claim that the injury occurred IN the LOD during your AD time, and that injury is the SAME injury that you are being boarded for today.

Hope this helps...
 
#17
Check 42,

I see parallels with your story and mine. I am trying to navigate around and found others who have already been down this path. I had 6 years active duty Air Force and then I joined the ANG with no break in service. The Line of Duty appears to be the best option going forward and is what my medical clinic suggested. However after reading your story and others similar, i have not found clear definitive reading on a LOD with respect to those who had the injury occur before they joined their respective Guard or Reserve units.

It seems as though DODI's along with respective instructions for each branch gives authority to issue the LOD's for former Active Duty personnel. I have sought legal counsel and they said if the injury occurred during active military service and you have medical documentation to back you up then its a fight they feel confident they will win a LOD. When i read the Air Force instruction on LOD the only option to reject an LOD, is claiming that the injury occurred prior to service or doing something unauthorized. Which would be a difficult case to make when you have active duty medical documentation to support your claim.

I was told by my medical clinic that PTSD is the only medical condition that a LOD can be requested in respect to. If it is outside 180 days after you come off active duty status. I did not get that in writing but i trusted the source as they were the originators of my LOD. PTSD often times manifests years down the road. I know with many people they bury the emotions and symptoms until they can't function at a normal level. Very common in many readings I find.

I feel as though they have to take into account your active duty injuries; when you retire your active duty time counts towards your credible years of service. Being that you did not have a gap in service it seems they are delaying the inevitable that your LOD will eventually be approved. I wish you the best...

Please keep us in the loop the best your can.
 
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