Hello Mr. Perry,
I have a question about the Army Board of Records Correction. I was medically retired in 2010. I was diagnosed with fibromyalgia by my GP at Madigan. The MEB board conveyed through the Jag attorney and PEBLO that I had to be diagnosed by a Rheumatologist before they could consider adding it on my list of unfit conditions. I was diagnosed while on TDRL. After going back and forth with the board through the Jag Attorney they weren’t going to add it. So I asked for a formal hearing to fight it. As I was in the hallway waiting to go in front of the board the Jag Attorney walks out and tells me that the he has good news and bad news. He said that the board was going to remove my unfit conditions of lower back and feet because I had them as a reservist before I was put on active duty status “pre-existing” but they would add Fibromyalgia. Now because it had been such a long time I had forgotten that I lost my arches and injured my back originally during my first four years in the military as active duty. So I signed the paperwork. Years later I realized the error but was unsure if I could appeal to the Army Board of Records Correction due to the 3 year statute of limitation. But I believe where there’s a will there is a way and it starts with gathering evidence. So I start gathering all my records. I realize right away that I don’t have any of the finalized paperwork from the Med Board, they had only sent me my Retirement orders. I didn’t have the updated 199, no medical records from the final assessment, nothing. So I request my C-file which took a year and half and my Congress women to get, check my records on AKO, check IPerms, request everything from the National Archives. Each has a few pieces of it but no finalized 199. So finally get a hold of the department that houses those records and request them three times but never receive them. Today I called them and all the cosmic tumblers must have been aligned because I got everything electronically sent in 5 minutes. So I start reading and realize they didn’t remove my feet and back, they just added them to the rating of fibromyalgia quoting the 38CFR code section 4.14 avoidance of pyramiding. Now red flashing lights are going off, they didn’t just brow beat me courtesy of the Jag lawyer, they screwed me in an illegal application of the VA law. My feet and back have objective and quantitative evidence and diagnoses and do not overlap the fibromyalgia, nor did the VA view it that way. So after all that, my question is what are the odds of the Board of Records Correction waiving the three year statute? Have you seen them waive it under similar circumstances? Thanks so much for your time?
1) The military branches/DFAS agree (whether as part of the Soto case, or just as good practice knowing that the "writing is on the wall" for this getting addressed for those with more than $10k owed) to either go back and audit accounts and just pay them out without any action needed;
2) They set up a streamlined application process to review accounts for those who believe they should have received more; or
3) They do nothing except address those who are part of the Soto class....and then leave it to those owed more than $10k to either go through BCMR or sue in US Court of Federal Claims.
Those are just educated guesses, and I am not privy to any discussions between Soto plaintiffs and the DOJ.