The BCMR: It can make a grown man want to cry

franky

PEB Forum Veteran
#41
Please do not bash me for chiming in, please. What I am seeing is that the BVA rates the decision, in most cases for the veteran. On the other hand, the IPEB/FPEB rates in favor of the DoD with the findings that were given to them by said LTC's or Senior Army civilians. What was the VASRD made for if not to rate an injury or illness that a service member incurred, and not just by one board or adjudicator, but across the board equally? The reason that I as is that I am in the process of appealing my 2009 rating to the ABCMR and need as much input, knowledge, and what if's before I appeal.
 

maparker

Staff Member
PEB Forum Veteran
Registered Member
#43
Ed,

In your example above, if the military doc found a different range of motion, that should be the basis in the BCMR decision for a different rating than the VA. Then the questions if the range of motion study was conducted correctly. I have seen to many examples of both DoD and VA ROM's being eyeballed and not capturing active, passive ROMs, point of pain and Deluca factors. When the ROMs were done is also an issue. The MEB ROM could have been done a year before separation and the VA ROM at separation. If the condition worsened, the VA rating would be the valid one for the state of the disability at the point of separation and should be applied by DoD.

Where I see a foul ball, and the point the Rominger case hit on, is that the BCMR needs to explain why the military rating is the correct one. Simply stating that the DoD and VA have different purposes, thus a different rating can result, does not cut it. If the DoD rating is correct, then justify it in the decision.

We can debate which agency has the better raters but there is no doubt that the VA rating decisions provide better rationale to back their rating decisions.

In addition, if the DoD raters were so spot on, explain why so many DoD ratings are being overturned by the PDBR. The short answers is that the DoD raters were not following the VASRD. DoDI 1332.39 and AR 635-40 were loaded with illegal, non VASRD rating criteria. The DoD raters were incorrectly trained that they did not have to follow the VASRD.

Mike
 

Ed Mercanti

PEB Forum Veteran
Registered Member
#44
If the ROM test was taken say, a year before discharge, and the VA ROM test was given within a couple of weeks of discharge, you would certainly have a good argument to change the rating percentage. Also, if you can show that the tests weren't administered IAW the SOP for such tests while the VA did adhere to such guidelines, again you would have a good case to change the rating percentage. In both cases you are citing reasons why you believe that the VA rating more accurately dipicts the rating percentage prescribed in the VASRD. And thats the key. Not to just say the VA rating more accurately reflects the severity of the disability. But to explain why, as supported by medical records.

The DoD ratings were by and large spot on with the regulatory guidance the members of the PEB were instructed to incorporate. That is certainly not indicative of a lack of expertise on the part of the PEB members. Its a matter of them being provided improper directives by higher authority. Remember: the PEB proceedings all are reviewed by the USAPDA who would have enforced the application of the flawed guidelines.

As I've said before, the Director of the ABCMR mandated that when a disability percentage is challanged that the VASRD be cited in either approving or disapproving the case. So this is currently a non-issue.
 

maparker

Staff Member
PEB Forum Veteran
Registered Member
#47
Ed,

Citing the VASRD in the decision is not enough. A BCMR decision can merely state, in their opinion, the rating is in compliance with the VASRD. What needs to be done in cases of a differing VA rating for the same condition is a detail explanation as to why the military rating is correct and the VA rating is incorrect. If the military rating is correct, they will prevail by explaining why.
Indeed the military raters could have been diligently and faithfully applying incorrect criteria. That does not make them better raters than VA raters who were using correct criteria. Experience doing it wrong does not make a good rater. The BCMR also adjudicated hundreds if not thousands of disability cases using illegal rating criteria. Can these individuals repetition the BCMR based on the fact the BCMR denial was based on illegal rating criteria or will they be told more than a year went by so tough luck?

I know you are Army centric and I would give the Army system much higher marks than the other services now as compared to 2007. My days are currently occupied by Navy and USMC cases that just blatantly find ways to deny disability benefits.

Mike
 

Ed Mercanti

PEB Forum Veteran
Registered Member
#48
I guess my statement was broad enough to leave it open for interpretation. The ABCMR Director mandated that the criteria for the rating percentages be cited and applied against the existing medical records. Bear in mind that the BCMR starts its consideration with a presumption that what the Army did was correct. So the BCMR would only discuss the disputed rating, and it would be up to the applicant to show error or injustice. Just like in the two instances we discussed earlier in this conversation.

So you equate expertise in rating disabilities to the instructions the raters are following? I disagree. The fact that DoD's supplimentation of the VASRD was later determined to be illegal does not in any way indicate the officers applying the flawed criteria were less competent than those not applying the flawed criteria. They were accurately and correctly applying the criteria they were told to apply.

As for BCMR reviews, as far as I know the court ruling that said DoD was illegally supplimenting the VASRD did not mandate a retroactive review of cases. If there was no order to retroactively review cases, the BCMR would hold to the court ruling that stated that the BCMR will only reconsider a case once if the request for reconsideration was submitted within a year of the original denial.
 

franky

PEB Forum Veteran
#49
What is your basis for appeal Franky?
Ed,

My basis for appeal is being medically separated @ 20% L4-L5/S1, Diskectomy and radiculopathy (discharge Jan 2009). These issues are based off of DD 199. From what I have seen and understand, issues concerning the back are usually rated from 0-20%. I do have a two CUE claims with the VA dating identifying mistakes made during the rating process. Initially, I was rated at 10% for back and 10% left leg radiculopathy from both DoD and VA, combat related. Initial injury was 2004 with surgery, deployed four months later to OEF, then OIF, various other AO's in support of the GWOT. Long story short, I tried to make to the 20 year mark and finally at 14 years of AFS, I injured it again to the point that I could no longer fake being no hurt. As many of us know, it is very hard to be a broken Soldier and let go of the thought that we can no longer operate in the capacity that we once did.

Sorry that it took me an hour to make minute rice, but it is so hard for me understand how a group of people who may not have experienced the same injury, worked in the same capacity, or contain similar desires (military) can pass or offer a rating that may not be beneficial to the service member or veteran. Again, please do not bash me for offering my humble opinion.

Frank,
 

Ed Mercanti

PEB Forum Veteran
Registered Member
#50
Ed,

My basis for appeal is being medically separated @ 20% L4-L5/S1, Diskectomy and radiculopathy (discharge Jan 2009). These issues are based off of DD 199. From what I have seen and understand, issues concerning the back are usually rated from 0-20%. I do have a two CUE claims with the VA dating identifying mistakes made during the rating process. Initially, I was rated at 10% for back and 10% left leg radiculopathy from both DoD and VA, combat related. Initial injury was 2004 with surgery, deployed four months later to OEF, then OIF, various other AO's in support of the GWOT. Long story short, I tried to make to the 20 year mark and finally at 14 years of AFS, I injured it again to the point that I could no longer fake being no hurt. As many of us know, it is very hard to be a broken Soldier and let go of the thought that we can no longer operate in the capacity that we once did.

Sorry that it took me an hour to make minute rice, but it is so hard for me understand how a group of people who may not have experienced the same injury, worked in the same capacity, or contain similar desires (military) can pass or offer a rating that may not be beneficial to the service member or veteran. Again, please do not bash me for offering my humble opinion.

Frank,
And the error or injustice in your rating is what?
 

Ed Mercanti

PEB Forum Veteran
Registered Member
#52
Franky, if I were to have gotten an application which said what you just said, I would have written it up as a very simple denial. Saying you don't like the way you were rated has no relavance to the appropriateness of the rating. So I repeat. What exactly is the error or injustice in your rating?
 

franky

PEB Forum Veteran
#53
Well Ed,

Without going over my whole history, which I do not wish to post on a public forum, I can understand that what I posted was not qualitative nor quantitative. I do have legal counsel assisting me with my appeal and I was merely stating my opinion of what the ABCMR provides, based on what I have read. So, no I do not expect for you or anyone else to provide me with a probable outcome of what the ABCMR will issue. I like many others can read the results of what the BCMR gives to SM's and veterans who apply, and they are not in favor of either. It would be like me rating you, without knowing anything about you or what you have done. I did not expect you to provide me any information base on what I posted here. You asked and I gave you a brief overview. If you are offering assistance, I can pm or you can pm me. Otherwise thank you for your input!

Frank,
 

Ed Mercanti

PEB Forum Veteran
Registered Member
#54
OK Franky. Your original question was kind of broad, which led me asking you what your issue was. Thought it may narrow down what it was you were looking for. But here goes. The VASRD is the VASRD. The military used to illegally suppliment the VASRD, which was struck down by the courts. So now the VASRD is the VASRD. However, the court order did not require the military services to apply the unsupplimented VASRD in previous cases. And while the VA will rate all service related disabilities, the military only rates conditions which preclude someone from performing their duties. Therefore, it is common for the VA to rate conditions which are not rated by the military.
 

89Falcon

PEB Forum Veteran
#56
Ed,

I know you are Army centric and I would give the Army system much higher marks than the other services now as compared to 2007. My days are currently occupied by Navy and USMC cases that just blatantly find ways to deny disability benefits.

Mike

Mike, that's what I understand also....I know of a USMC case that involves an O6...that should result in prison time for the board members :mad:...or at least a "code red". I honestly don't know how some people sleep at night.
 

franky

PEB Forum Veteran
#57
They sleep fine until it happens to them. I do not know either and it is a sad sad issue that needs to be resolved. Many gave so they may judge, not justly!
 

nwlivewire

PEB Forum Veteran
#58
Ed,

Thanks... The VASRD is the VASRD! Got it...

MISSION FIRST - PEOPLE ALWAYS!!!!

Somehow, the legalistic machinations of top-down, hierarchical military bureaucracies seem to forget the second half of this Motto.

That, along with the misplaced and forgotten moral and ethical considerations being gobbled up by the "higher" values of saving a buck so we can pay for unfettered profitteering for the other 99% who never see a minute in a uniform.

This whole thing is busted, and frankly, it's a sad day when 1,000s of common Soldiers have to explain WHY, over and over and over again, explain why the decisions have been in error.

What gets me is that the people who hold these rarified positions take their instuctions from higher-ups who wrtie this crapola. Where were their experienced, educated and erudite minds when it came time to QUESTION these faulty additions to the VASRD?

I have seen how the circulatory diconnects of organizational "rational" thinking has failed many an injured Soldier. I often wonder if this used as an easy avoidance of the honest, hard truth of the real costs of war.

BLUF: If you break it, you buy it. I have just seen way too much wiggle room on this and it's an ethically and morally bankruptable position to take with human beings - Soldiers, Saliors, Airmen, Marines, and Coast Guard Servicemembers.

Holy Cow!

I have to stop....out of nice words....

For a satirical break, watch this 6 minute blip...



v/r,
nwlivewire
 

franky

PEB Forum Veteran
#60
NW,

I needed that as well, however, please don't let any of them get injured. We know what follows. Just kidding. Thanks and take care...

Frank,
 
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