Want to Appeal IPEB on Adjustment Disorder

[Mokorr]

Im a 25 year old SPC in Army National Guard with almost 5 years TIS.

I am in Combat Arms and I am in Field Artillery.

My MEB was in August 2012. Found Unfit.

My NARSUM only contained Left Knee Internal Derangement Post ACL Repair as a condition. My JAG advised me not to appeal the MEB for my Mental Health Condition and wanted to Appeal it during the PEB. (I'm kicking my self because I did not listen to MaParker)


http://www.pebforum.com/site/threads/meb-only-looks-at-referred-conditions.16283/#post-68506

Back in 2009, I was 21 years old an a PFC, I was running in formation when a soldier in front of me fell. I jumped over him and tore my Left ACL. From 2009 through 2011 I was receiving treatment and surgery and was activated and attached to WTU. I also tore my Left ACL again during my therapy. I had another surgery and was discharged from active duty back into my national guard unit before I was fully healed. I was told by physicians and nurses WTU's mission was to get me to bare minimum requirements to be stable (which I learned later was very shady and wrong) and return me to my unit. Upon return I had no profile (for five months) and was going out in the field with full battle rattle with only ibuprofen subside the pain and instability. I was finally issued a profile because of persistence and my battalion at the time was pending conversion to 11B infantry and to deploy to Afghanistan (Which was cancelled five months ago due to budget constraints). Since then I've been unemployed for two years (really has been hard finding a job and could not return back manual labor which I use to do) while going through the IDES process for a year and a half. I have exhausted all unemployment benefits. I was denied any chances of going back to WTU or being activated on Title 10 or Title 32 status. I was also denied Incap Pay. I lost all opportunities for AGR and ADOS positions because I have a P3 Permanent Profile. Going to medical appoints and going through the IDES process has also hindered my progress finding civilian employment because of letting them know that I have to take sick days and can be called at any time to go to IDES appointments or meetings. My left leg has never been the same and requires a brace.

I received my 199 and my IPEB findings.

I would like to appeal to have my Adjustment disorder included in my PEB rating. It was also stated in my Commander's Letter that my "physical and mental" disabilities has caused me to not perform my duties correctly and timely and hinders my unit's missions. My Adjustment Disorder was DX in the Army in 2010. The VA DX was made in JUL 2012 and rated for 50% in JAN 2013. My VA DX also noted that my injury to my Left Knee played a major role in the development of my Mental Health Condition. I have had this condition longer than six months and continue to take medications on a daily basis for it.

Jason Perry said to me in a Post:

10 USC 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."

It is one of your rights at the formal PEB to present whatever arguments you have about your condition.

You will hear again and again various erroneous things like the PEB only considers one condition or they can only consider those referred by the MEB. (While you will see rationales from the PEB rejecting conditions as unfitting because the "MEB did not refer this condition", this is different than the PEB not ever considering additional conditions- I routinely argue for and get "new" (as in not previously commented on by MEB or in the records) conditions found unfitting and rated.

Don't let anyone tell you that conditions can't be considered. You will have to have evidence to bolster your case (and recall that the MEB is required to properly document conditions- so, while in a sense to succeed you will have to show evidence- it is really the MEB's obligation to document so the burden is not on you in that sense).

I read Jason Perry's post some where (lost link and could not find it again in the forums) about PEB erroneous decisions and not rating Adjustment Disorders and wanted more clarification.
(EDIT: Found it Here. http://www.pebforum.com/site/threads/adjustment-disorder.4320/#post-16265

My question is;

Are my chances slim on trying to get a PEB Rating of 30% and Medical Retirement?

Will I most likely be put on TDRL instead of PDRL?

Are Adjustment disorders not valid for a DOD Rating?

What Plan of Action should I take?

My Right Hip Right Hip Bursitis Tendinopathy was developed for overcompensation of my Left Knee. But my MEB Doctor would not put it in because I did not have at least a year of physical therapy and orthopedics said it was a separate issue and not related to my leg but over compensation did play a role.

IPEB Results:

Army: 10% Left Knee Internal Derangement Post ACL Repair

VA Rating: 90%
Here are some of the ratings.
50% Adjustment disorder with mixed depression, anxiety and hyperventilation
10% Left Shoulder Tendinopathy
10% Right Hip Bursitis Tendinopathy
10% Left Knee Internal Derangement Post ACL Repair
10% Bilateral plantar fasciitis with pes planus
0% Scar of Left Knee Post ACL Repair

(EDIT: Not Sure if I was suppose to Post in IPEB or Outcomes. Can a Moderator please move this post to the appropriate forum? Thanks!)

 

[Jason Perry]

Are my chances slim on trying to get a PEB Rating of 30% and Medical Retirement?

Yes...there is almost no chance that the PEB will rate adjustment disorder. However, my personal opinion is that this is flat wrong. If you have any chance of eventually winning on this point, you must appeal (issues not raised before an administrative board are waived in most later appeals).

Will I most likely be put on TDRL instead of PDRL?

Hard to say...depends on "stability" finding. Note that the Army has a policy suggesting that most cases should be PDRL over TDRL absent Clear and Convincing Evidence that the condition is not stable. https://www.hrc.army.mil/site/activ...e_Policies_and_Sustainment_Training_Notes.pdf

Are Adjustment disorders not valid for a DOD Rating?

Both DoD and the Army have regulations stating that Adjustment Disorders are not compensable. However, the military departments are required by statute (superior law to regulations) to follow the VA Schedule for Rating Disabilities and apply it as interpreted by the US Court of Appeals for Veterans Claims. Both the VASRD and the Court have ruled that Chronic Adjustment Disorder is compensable. Therefore, in my opinion, the DoD and the Army (and all branches) have to compensate for Chronic Adjustment Disorder.

What Plan of Action should I take?

Nothing on this site, per the Rules/Terms of Service is legal advice. That said, in order to challenge something, you must appeal. In that case that would mean demanding a Formal PEB. You should seek qualified legal advice.

Any Advice?

See above.

 

[Mokorr]

Yes...there is almost no chance that the PEB will rate adjustment disorder. However, my personal opinion is that this is flat wrong. If you have any chance of eventually winning on this point, you must appeal (issues not raised before an administrative board are waived in most later appeals).


Hard to say...depends on "stability" finding. Note that the Army has a policy suggesting that most cases should be PDRL over TDRL absent Clear and Convincing Evidence that the condition is not stable. https://www.hrc.army.mil/site/activ...e_Policies_and_Sustainment_Training_Notes.pdf


Both DoD and the Army have regulations stating that Adjustment Disorders are not compensable. However, the military departments are required by statute (superior law to regulations) to follow the VA Schedule for Rating Disabilities and apply it as interpreted by the US Court of Appeals for Veterans Claims. Both the VASRD and the Court have ruled that Chronic Adjustment Disorder is compensable. Therefore, in my opinion, the DoD and the Army (and all branches) have to compensate for Chronic Adjustment Disorder.



Nothing on this site, per the Rules/Terms of Service is legal advice. That said, in order to challenge something, you must appeal. In that case that would mean demanding a Formal PEB. You should seek qualified legal advice.



See above.

Thanks Jason, I plan to appeal and talk it over with JAG.

I also edited my post with new information if it helps.

 

[Jason Perry]

I don't discourage this at all. However, understand that the JAGs generally will focus on what are likely outcomes at the PEB. They have (and cannot) represent members on later appeals (to BCMR or in Federal Court) and therefore, have no experience with the legal issues outside of the PEB. Again, I encourage your consulting with legal counsel. Just be aware that they will likely advise you that the military will not recognize adjustment disorder. If they do so advise, I agree...however, that does not mean that the PEB would be correct or that this issue cannot be won on appeal.

 

[Mokorr]

I don't discourage this at all. However, understand that the JAGs generally will focus on what are likely outcomes at the PEB. They have (and cannot) represent members on later appeals (to BCMR or in Federal Court) and therefore, have no experience with the legal issues outside of the PEB. Again, I encourage your consulting with legal counsel. Just be aware that they will likely advise you that the military will not recognize adjustment disorder. If they do so advise, I agree...however, that does not mean that the PEB would be correct or that this issue cannot be won on appeal.

Thanks again Jason. I plan on going to a FPEB and try to get a 0% Adjustment Disorder on my 199 so that one day if politics and bureaucracy allows an Adjustment Disorder to be included in DOD Rating, I can always appeal to change it one day in the future.

Thanks.