we got the call....

concernedwife

PEB Forum Veteran
Registered Member
#1
kind of.

husband got the call from the PEBLO's office saying they have his FPEB findings, and he needs to come in to get the findings - but they won't be able to see him and go through every thing with him until tomorrow at 10am.

is this normal? we were under the impression that the lawyer would be the one to contact my husband with the finding of FIT or UNFIT.

also, if you all could say a prayer for our anxiety - that would be amazing.
 

maronedp

PEB Forum Veteran
Registered Member
#2
mine emailed the results to me....no lawyer, just the PEBLO. I was at work, he said you have about 6 weeks till the official orders come through and then you'll have 10 days to clear.
 

Matt Kozyra

PEB Forum Veteran
Registered Member
#3
Ma'am,

Not at all uncommon for the PEBLO to get the results before the attorney does. The PEBLO will have documents that he'd like your husband to sign. The most important part of them is the question about what to do next. Does he want to appeal the results? Does he want to appeal his VA percentages?

Those are questions that you'll want to talk over with your attorney, so don't let the PEBLO rush you into signing anything. You can take the forms with you and talk them over with your lawyer later. That said, your appeals clock (about two weeks) starts running as soon as he's notified of the results, so get on your lawyer's schedule as quickly as you can!

Best of luck! For better or worse, you get an answer tomorrow!

-Matt
 

concernedwife

PEB Forum Veteran
Registered Member
#4
Thanks. We called his lawyer, and he was found fit again. I’m not sure I can handle this much more, but he would like to contest this as well. Just not sure what that’s called or what the process is.
 

concernedwife

PEB Forum Veteran
Registered Member
#5
I’ve looked here on the forums for any threads pertaining to this sort of route, but haven’t found anything. They kept referring to his migraines as headaches in their reasoning and then continued on pretty much outlining his timeline incorrectly in some (not all) aspects. Reading through the findings and notes made me feel as if he was being portrayed as a liar, for lack of better terms. Which is certainly not the case. It’s very odd that a doctor with MD at the end of his name was the one that pushed for this MEB, and yet here he is fighting to the very last end to see it through after being told this was what’s best for him - and of course, we agree that a separation or medical retirement would be best. I will never understand (not just for my husbands sake, but for many) why a doctor would say “you’re not fit for duty” for a year, only for my husband (and others) to now receive TWO fit findings. It makes me ponder the thought; what are the doctors there for, if their professional opinion on the matter isn’t really taken into consideration? Maybe it is, I wouldn’t know.

I could go on and say so much more, but I won’t. At the end of the day, we respect their decision. We just hope they politely respect that we disagree with their decision.
 

Matt Kozyra

PEB Forum Veteran
Registered Member
#6
Ma'am,

There's at least one more appeal step from here (called a Petition for Relief or a Rebuttal, depending on the service branch). So, all hope isn't lost yet.

I certainly understand your frustration about the FIT findings, especially after your husband's treating physician gave an opinion that he's not okay to go back to work. As of January 2018, 6% of all Service members going through the DES process were found FIT and returned to duty. But that varies dramatically by service branch (2% for Army, a whopping 30% for Navy). It's a tough pill to swallow, for sure.

Something for your attorney to consider when filing your appeal - the Board is not supposed to substitute their own judgment for that of your husband's treating providers.
One of the fundamental guiding principles of disability evaluation is that the Board is not permitted to rely on its own unsubstantiated medical opinion in disregarding a treating physician’s diagnosis or findings.

The seminal case on this point is Allday v. Brown, 7 Vet. App. 517 (Vet. App. 1995). Allday states, “Moreover, the Board must support its medical conclusions on the basis of independent medical evidence in the record or through adequate quotation from recognized treatises; it may not rely on its own unsubstantiated medical judgment to reject expert medical evidence in the record, but may reject a claimant's medical evidence only on the basis of other such independent medical evidence.” A quick Lexis search shows this headnote cited by 4,840 other cases, including 1,988 times since 2010. It is very well-settled law.

A recent case clarifying the issue is Reyes v. McDonald, discussing the requirement that the Board provide thorough rationale for disagreeing with medical opinions in the record. “To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.” Reyes v. McDonald, 2015 U.S. App. Vet. Claims LEXIS 978, 8-9 (U.S. App. Vet. Cl. July 17, 2015).

There is a ton of other law out there on this point, because it's something the Board and the VA get wrong all the time. My guess, without reading your husband's Formal Board rationale, is that the Board didn't do a great job explaining why they disagreed with the treating physicians. I feel a little like a daytime prescription drug commercial, but "ask your lawyer if this argument is right for you."

-Matt
 

concernedwife

PEB Forum Veteran
Registered Member
#7
I totally understand what you’re saying. For the record, my husband is Navy. So the 30% doesn’t surprise me in those who were, indeed, found fit regardless of a medical professionals diagnosis and opinion.

My husband has excelled a lot during his career, albeit the migraines. Over the past couple of years is when they’ve been at their worst. His accolades are what’s working against him. Without being too harsh, it makes us feel as if he should have been a slack off of a sailor in order to prove that he was suffering. Instead, he was just fulfilling the duties he vowed to uphold when he signed on the dotted line. And now? Now, he’s paying for it. Figuratively and literally. That’s pretty much what the rationale states. His accolades and ability to achieve his two year degree in the last nine years is what’s held him back from being found unfit.

Which is also weird to me, considering they’ve deemed him non deployable. So, you’re saying you can’t do anything with him - but you’re keeping him in anyways, because......? *crickets*

So here we are. He’s non deployable. He can’t re-enlist because they’ve deemed him non deployable. So now he will just sit around, not be able to advance, etc. And for what?

So they don’t have to pay him a severance or give him health benefits for the remainder of his days?

Nine years of his life, he’s given to the military. Nine years of our relationship and our Marriage. And because he’s actually upheld the duties of a sailor? He has to sit and rot for the next two and a half years left on his contract.

You’re darn right we are contesting this. I won’t give up on my husband, even if others seemingly have.
 

Chaps_Z

PEB Forum Veteran
Registered Member
#8
Concernedwife,

I'm sorry it didn't go the way you expected. Prayers for you and your husband going forward.

My FPEB lawyer called me very quickly after learning about my results. He was great. He was.....LT Matt Kozyra! Great to see him on here posting.

He is a great lawyer and person. He took very good care of me pre-, during, and post-board.
 

concernedwife

PEB Forum Veteran
Registered Member
#9
Concernedwife,

I'm sorry it didn't go the way you expected. Prayers for you and your husband going forward.

My FPEB lawyer called me very quickly after learning about my results. He was great. He was.....LT Matt Kozyra! Great to see him on here posting.

He is a great lawyer and person. He took very good care of me pre-, during, and post-board.
Mr. Kozyra has been extremely helpful with his responses here on the board.
 

concernedwife

PEB Forum Veteran
Registered Member
#12
Thank you, everyone. Our lawyer has been fantastic, so what he suggests, we will do. And if this doesn’t pan out, he can try again in six months. Like I said before, I’m just so baffled that this was a fit finding. If they’re looking for someone more along the lines (in this particular case) to slack off to prove he’s suffering, that just won’t happen. It’s not in his nature, but we are also finding out that achieving sailor of the quarter and year at two separate commands, two years in a row can truly hurt your case when it comes to what’s best for your health.
 

oddpedestrian

PEB Forum Veteran
Registered Member
#13
You are right about command reviewing you as a slacker I actually did not know the MEB required that from my command. When I saw my completed packet I saw the command notes claiming I was incompetent and constantly needed supervision as a junior leader lol I was like wow wasn't expecting that. Another problem is reviewing ALL his medical notes sometimes there will be a provider that annotates that they think your self-reports are suspicious and cast doubt on your reported limitations. Often the VA does this and ignores all the other doctors and opinions that support your position.
 

concernedwife

PEB Forum Veteran
Registered Member
#14
maybe i am reading your post wrong - but the issue my husband is having, is the fact that he has accomplished as much as he has in the nine years he has been in [first class in seven years, junior sailor of the quarter twice, junior sailor of the year once, three NAMs, NEC, college two year degree, two warfare pins, two deployments] and that is paying against him. if i read your comment wrong, i apologize.
 
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