Alan Young asked,
I was shortchanged by the Army when I was medically discharged in 1996. I went to the medical review board and was given a 10% rating, 6months later I was granted 30% by the VA. I never saw the full write up until 10 yrs. later when getting a VA rating re-evaluation due to my conditions deteriorating. I had a bunch of stuff that was not adjudicated. The medical staff told me to see a VA service officer, DAV, etc. I used the DAV, and they got me raised to 60% and back pay (10yrs) from date of initial rating since I should have been rated higher after discharge. Now due to health complications with my injuries my rating has is at 100% and I am getting worse yr. by yr. I have had people tell me I should have been medically retired and not discharged. If that is the case, I would have Tricare for life.
I read an article last yr., that I can’t find online anymore, that basically said the DOD had a standard policy in 1996 that all service members going to a medical board were discharge at 10% and passed to the VA for a disability rating so that the DOD budget didn't get affected by medical retirements from injured service members. It stated that the policy did not change until the post 9/11 veterans coming out of the middle east raised heck. It was then that the more service members started getting medically retired and not medically discharged.
My questions are:
1. Do I have a case for a change/upgrade from medically discharge to medically retired since I could not perform my MOS?
2. Should I go it alone or seek out a service officer or lawyer to help?
3.Can the DAV do this?
Any recommendations on how to proceed would be appreciated.
Cheers,
Al
Provis replied,
How long were you in before being medically separated?
Alan Young responded,
1985-1996
Provis said,
Okay. There is some decent longevity there. It’s going to be very hard to win a case going the BCMR route as the condition being rated higher later on doesn't factor in it. The system in place at that time was LDES and so the DOD gets to decide the rating and isn't bound by what the VA rates the condition after getting out. You have to prove that there is a clear and unmistakably injustice. Its very possible that at that time the condition you had would/should have been rated 10%.
Also, just so you know the only 2 things that are going to come out of a medical retirement is getting Tricare and the possibility of getting CRSC. Your VA compensation is most likely greater than the chapter 61 pension you would have received if medically retired and by law to accept VA compensation you need to waive dollar for dollar the pay received so that your pension would be completely offset by getting your VA disability compensation.
Lastly, an attorney would be best to try to get this submitted but know it takes years and the likelihood of winning isn't great. If you believe the DOD messed up, I encourage you to move forward. I am not trying to discourage you but want you to have proper expectations.
RetiredAtty added,
Provis has appropriately raised the issue of the remedy you will derive even if you prevail in obtaining a military retirement.
That said, your only remedy is to submit an application to the Army Board for Correction of Military Records (ABCMR) where your likelihood of success on the facts your present appears to be remote.
The ABCMR requires that an application be submitted within three years of discovering an error or injustice. You appear to have missed that three-year window as you indicate you discovered in or about 2006 that you had conditions in 1996 that were not properly adjudicated at the time you were separated. However, the ABCMR liberally waives that limitations period in the interests of justice. It is more likely than not that the ABCMR will consider your application on the merits, although it is not required to do so. A decision by the ABCMR not to waive the three-year limitations period is essentially unreviewable.
On the merits, your case has little likelihood of success absent clear and convincing evidence from your service treatment records and other military records demonstrating that prior to your separation in 1996, you suffered from medical conditions that prevented you from performing your duties that the MEB or PEB failed to consider or improperly considered. Proving the existence of a medical condition prior to separation is not enough; you have the burden of proving through contemporaneous records that the medical condition prevented you from performing your duties and was unfitting. VA decisions after your separation will not be considered sufficient evidence to meet your burden. That is because, particularly in your case, which was decided under the legacy disability system prior to the sweeping changes resulting from the FY2008 NDAA (including requiring the military to use VA ratings), a VA rating of either an unfitting or other condition made after separation is not generally deemed relevant to the military disability decision made by the PEB and is not considered evidence of a material error or injustice sufficient to warrant relief. The ABCMR will take the position, which has repeatedly been upheld by the courts, that a military disability determination is based on the service member’s actual medical condition at the time of separation (the so-called “snapshot in time”) rather than the member’s condition at a future or subsequent point in time as determined by the VA. That is because the purposes of the VA and military disability evaluations are different. The military disability rating is intended to compensate the individual for interruption of a military career because of an impairment at the time of separation. The VA awards ratings because a medical condition affects the individual's civilian employment, and the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability.
Finally, you have no remedy in the US Court of Federal Claims, because the six-year statute of limitations began to run in 1996, following your PEB and separation. That is a jurisdictional bar. On the other hand, you potentially may be able to obtain review of an adverse ABCMR decision in a US district court under the Administrative Procedures Act, through which you’d seek to have the district court overturn the ABCMR decision and seek the equitable relief of military retirement status.
I was shortchanged by the Army when I was medically discharged in 1996. I went to the medical review board and was given a 10% rating, 6months later I was granted 30% by the VA. I never saw the full write up until 10 yrs. later when getting a VA rating re-evaluation due to my conditions deteriorating. I had a bunch of stuff that was not adjudicated. The medical staff told me to see a VA service officer, DAV, etc. I used the DAV, and they got me raised to 60% and back pay (10yrs) from date of initial rating since I should have been rated higher after discharge. Now due to health complications with my injuries my rating has is at 100% and I am getting worse yr. by yr. I have had people tell me I should have been medically retired and not discharged. If that is the case, I would have Tricare for life.
I read an article last yr., that I can’t find online anymore, that basically said the DOD had a standard policy in 1996 that all service members going to a medical board were discharge at 10% and passed to the VA for a disability rating so that the DOD budget didn't get affected by medical retirements from injured service members. It stated that the policy did not change until the post 9/11 veterans coming out of the middle east raised heck. It was then that the more service members started getting medically retired and not medically discharged.
My questions are:
1. Do I have a case for a change/upgrade from medically discharge to medically retired since I could not perform my MOS?
2. Should I go it alone or seek out a service officer or lawyer to help?
3.Can the DAV do this?
Any recommendations on how to proceed would be appreciated.
Cheers,
Al
Provis replied,
How long were you in before being medically separated?
Alan Young responded,
1985-1996
Provis said,
Okay. There is some decent longevity there. It’s going to be very hard to win a case going the BCMR route as the condition being rated higher later on doesn't factor in it. The system in place at that time was LDES and so the DOD gets to decide the rating and isn't bound by what the VA rates the condition after getting out. You have to prove that there is a clear and unmistakably injustice. Its very possible that at that time the condition you had would/should have been rated 10%.
Also, just so you know the only 2 things that are going to come out of a medical retirement is getting Tricare and the possibility of getting CRSC. Your VA compensation is most likely greater than the chapter 61 pension you would have received if medically retired and by law to accept VA compensation you need to waive dollar for dollar the pay received so that your pension would be completely offset by getting your VA disability compensation.
Lastly, an attorney would be best to try to get this submitted but know it takes years and the likelihood of winning isn't great. If you believe the DOD messed up, I encourage you to move forward. I am not trying to discourage you but want you to have proper expectations.
RetiredAtty added,
Provis has appropriately raised the issue of the remedy you will derive even if you prevail in obtaining a military retirement.
That said, your only remedy is to submit an application to the Army Board for Correction of Military Records (ABCMR) where your likelihood of success on the facts your present appears to be remote.
The ABCMR requires that an application be submitted within three years of discovering an error or injustice. You appear to have missed that three-year window as you indicate you discovered in or about 2006 that you had conditions in 1996 that were not properly adjudicated at the time you were separated. However, the ABCMR liberally waives that limitations period in the interests of justice. It is more likely than not that the ABCMR will consider your application on the merits, although it is not required to do so. A decision by the ABCMR not to waive the three-year limitations period is essentially unreviewable.
On the merits, your case has little likelihood of success absent clear and convincing evidence from your service treatment records and other military records demonstrating that prior to your separation in 1996, you suffered from medical conditions that prevented you from performing your duties that the MEB or PEB failed to consider or improperly considered. Proving the existence of a medical condition prior to separation is not enough; you have the burden of proving through contemporaneous records that the medical condition prevented you from performing your duties and was unfitting. VA decisions after your separation will not be considered sufficient evidence to meet your burden. That is because, particularly in your case, which was decided under the legacy disability system prior to the sweeping changes resulting from the FY2008 NDAA (including requiring the military to use VA ratings), a VA rating of either an unfitting or other condition made after separation is not generally deemed relevant to the military disability decision made by the PEB and is not considered evidence of a material error or injustice sufficient to warrant relief. The ABCMR will take the position, which has repeatedly been upheld by the courts, that a military disability determination is based on the service member’s actual medical condition at the time of separation (the so-called “snapshot in time”) rather than the member’s condition at a future or subsequent point in time as determined by the VA. That is because the purposes of the VA and military disability evaluations are different. The military disability rating is intended to compensate the individual for interruption of a military career because of an impairment at the time of separation. The VA awards ratings because a medical condition affects the individual's civilian employment, and the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability.
Finally, you have no remedy in the US Court of Federal Claims, because the six-year statute of limitations began to run in 1996, following your PEB and separation. That is a jurisdictional bar. On the other hand, you potentially may be able to obtain review of an adverse ABCMR decision in a US district court under the Administrative Procedures Act, through which you’d seek to have the district court overturn the ABCMR decision and seek the equitable relief of military retirement status.
