Appeal to FPEB and Personal Statement?

P

Patriot13

PEB Forum Regular Member
Registered Member
Short of it:

15yr USN, 7yrs Active, 8 reserve
Referred to MEB, concur with findings and exams, LDES
PEB results came back
L Sciatica: 20%
R Sciatica: 20%
Back: 10%

DOD Rating: 40% and PDRL, combat-related

Questions:
1. My back is currently at 40% by itself with the VA. Most recent DBQ has forward flexion @ 20 degrees. Not sure why they rated only 10%.
2. Does the DoD not combine ratings like the VA with the bilateral conditions? I would have thought I would be at 50% even with the low back rating
3. The evidence is objective that my back should have been rated higher and it seems silly not to appeal
4. Are we allowed to reference previous PEB results in personal statements to suggest that we only disagree with one of the ratings?
5. My statement of service was also incorrect and has since been updated to reflect my true retirement point count. Not sure if that matters, but want my time to be reflected accurately

Thanks!
 
Patriot13 said:
Short of it:

15yr USN, 7yrs Active, 8 reserve
Referred to MEB, concur with findings and exams, LDES
PEB results came back
L Sciatica: 20%
R Sciatica: 20%
Back: 10%

DOD Rating: 40% and PDRL, combat-related

Questions:
1. My back is currently at 40% by itself with the VA. Most recent DBQ has forward flexion @ 20 degrees. Not sure why they rated only 10%.
2. Does the DoD not combine ratings like the VA with the bilateral conditions? I would have thought I would be at 50% even with the low back rating
3. The evidence is objective that my back should have been rated higher and it seems silly not to appeal
4. Are we allowed to reference previous PEB results in personal statements to suggest that we only disagree with one of the ratings?
5. My statement of service was also incorrect and has since been updated to reflect my true retirement point count. Not sure if that matters, but want my time to be reflected accurately

Thanks!
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submit a VARR. That is what it is for. Ask for guidance from JAG on how to do it. A VARR is stating you want the VA to reconsider the rating and hopefully raise it.
 
Provis said:
Ouch. That is why I never recommend LDES. Not sure what the next step is for LDES. You have much less options for recourse in the old system.
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Agreed, but I felt it was worth protecting my VA rating instead of leaving that up to chance in the IDES process.
 
@JoelPettit - given your previous roles, able to shed any light?

The counsel at the Navy PEBLO's office told me that the FPEB counsel should be able to use the objective evidence and potentially get it settled pre-FPEB with a "stipulation".

Not much out there I could find on this limbo period.
 
@Patriot13
You are in a tough spot. Frankly, choosing LDES to protect an existing VA percentage is like using a sledgehammer when a scalpel is needed - more harm than good. There are better ways; but there's no use in crying over spilt milk, as they say. Navy FPEB stipulations are not pre-hearing-day, negotiated agreements. If one is offered, the FPEB may negotiate the terms. However, it is nothing like a settlement agreement. Whoever told you this has no first-hand experience with the Navy stipulation process. Honestly, it’s absurd these types of situations keep happening. PEBLOs and IPEB counsel have ZERO insight into how the FPEB works because they have ZERO substantive experience in that arena. At best, they pass emails to FPEB counsel regarding status updates on paperwork requests. This is precisely why PEBLOs aren't considered "counsel" of any sort. They are administrators only.

Read SECNAV M-1850.1 and you'll find the only thing LDES Service members can do is avail themselves of DoD processes; meaning, all you can do is go to the FPEB hearing and argue your case.

Please, keep in mind I am not saying what you should do, as I am not your attorney. I am simply pointing out your option(s). For specific strategy counsel, you should speak to your government or private attorney.

I hope this helps.

S/f,

Joel

Disclosure: I was a Marine JAG, Active Duty and Reserve IPEB & FPEB attorney, federal government civilian FPEB & TDRL-focused attorney at the Navy PEB, and now a private attorney focused solely on IDES cases. This post is meant as procedural insight only and should not be construed as legal advice related to a specific case or a legal analysis of facts thereof.
 
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JoelPettit said:
@Patriot13
You are in a tough spot. Frankly, choosing LDES to protect an existing VA percentage is like using a sledgehammer when a scalpel is needed - more harm than good. There are better ways; but there's no use in crying over spilt milk, as they say. Navy FPEB stipulations are not negotiated agreements. Honestly, it’s absurd these types of situations keep happening. PEBLOs and IPEB counsel have ZERO insight into how the FPEB works because they have ZERO substantive experience in that arena. At best, they pass emails to FPEB counsel regarding status updates on paperwork requests. This is precisely why PEBLOs aren't considered "counsel" of any sort. They are administrators only.

Read SECNAV M-1850.1 and you'll find the only thing LDES Service members can do is avail themselves of DoD processes; meaning, all you can do is go to the FPEB hearing and argue your case.

Please, keep in mind I am not saying what you should do, as I am not your attorney. I am simply pointing out your option(s). For specific strategy counsel, you should speak to your government or private attorney.

I hope this helps.

S/f,

Joel

Disclosure: I was a Marine JAG, Active Duty and Reserve IPEB & FPEB attorney, federal government civilian FPEB & TDRL-focused attorney at the Navy PEB, and now a private attorney focused solely on IDES cases. This post is meant as procedural insight only and should not be construed as legal advice related to a specific case or a legal analysis of facts thereof.
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Thank you for your input! I missed the fact he chose LDES. I still don't understand why people encourage Soldiers to choose LDES. It very much seems like a fear based decision instead of understanding why IDES replaced LDES. IDES gives Soldiers more protections.
 
JoelPettit said:
@Patriot13
You are in a tough spot. Frankly, choosing LDES to protect an existing VA percentage is like using a sledgehammer when a scalpel is needed - more harm than good. There are better ways; but there's no use in crying over spilt milk, as they say. Navy FPEB stipulations are not pre-hearing-day, negotiated agreements. If one is offered, the FPEB may negotiate the terms. However, it is nothing like a settlement agreement. Whoever told you this has no first-hand experience with the Navy stipulation process. Honestly, it’s absurd these types of situations keep happening. PEBLOs and IPEB counsel have ZERO insight into how the FPEB works because they have ZERO substantive experience in that arena. At best, they pass emails to FPEB counsel regarding status updates on paperwork requests. This is precisely why PEBLOs aren't considered "counsel" of any sort. They are administrators only.

Read SECNAV M-1850.1 and you'll find the only thing LDES Service members can do is avail themselves of DoD processes; meaning, all you can do is go to the FPEB hearing and argue your case.

Please, keep in mind I am not saying what you should do, as I am not your attorney. I am simply pointing out your option(s). For specific strategy counsel, you should speak to your government or private attorney.

I hope this helps.

S/f,

Joel

Disclosure: I was a Marine JAG, Active Duty and Reserve IPEB & FPEB attorney, federal government civilian FPEB & TDRL-focused attorney at the Navy PEB, and now a private attorney focused solely on IDES cases. This post is meant as procedural insight only and should not be construed as legal advice related to a specific case or a legal analysis of facts thereof.
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Joel Pettit's comments regarding the Navy DES Counsel in the field and the PEBLOs are spot-on. Having practiced in this area for 20+ years, I have often found that those in the field really do not know the inner workings of how FPEBs and Post-FPEB appeals work, with the rare exception being a DES Counsel who has recently been an FPEB attorney for that particular branch of service. For now, reach out to your Code 16 attorney at the Navy Yard when one is assigned and seek their advice, as they or private counsel with extensive Navy FPEB experience are the ones best suited to lay out the path forward for you. All the best, Jack Gately

P.S. Caveats:

1. For those of you reading this post who are being processed through the Army PEB system, I have found that some (but not all) Army OSC attorneys in the field are very proactive about contacting the Echo Team at the IPEB when an IPEB Recon petition is denied, or a member who is clearly unfit is found fit.

2. For those reading this post who are being processed through the Air Force PEB system, any pre-FPEB services are provided by the same ODC attorneys who would represent you at the FPEB. However, the problem there is that they are stretched too thin. When they have availability, their advice is usually quite good.
 
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Closing the loop on this one. Finished up board today and it was favorable.

Pretty straightforward, but an incredibly long process - and still have to wait for all of the separation aspects to happen from here!
 
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