70/100 TDRL Puzzled by IPEB reasoning - Need sanity check.

Few questions

I am being booted for PTSD/MDD with Ulcerative Colitis as a cherry on top. I am a little puzzled at the fact that I am placed on TDRL (I do understand most MH cases go the) but the verbiage of my NARSUM and even IPEB remarks is that the condition isnt going to improve (stable) NARSUM stating for over 3 years and IPEB for over 12 months. "The SM is not expected to improve sufficiently in the next 12 months to be able to perform his full duties" - no shit sherlock. Is this something worth fighting in FPEB? The MH rating is 70% (I find it fair assessment) and sole one for the DoD and the main referred condition.

Second question is that my Colitis(UC) has been a huge pain in my ass for the past year I had been MEBd with ALC one time for it already. The condition has been put into category 2 so it does not combine with DoD rating due to being "Controlled with Mesalamine" - non biologic pills/enemas. The condition is rated at 30% - I could argue 60%. Problem is that the justification seems very light as in I had a flare in 2022 and CDIFF(Due to round of prednisone) at one point. Reality I had flare for almost a year with multiple rounds of steroids - there is constant talk of "escalating treatment" - mesalamine is like holding the house up with a snot at this point. Not to mention I missed 95% of my work. I feel like the IPEB is full of shit on their remark and GI continually understates the severity.

Lastly I am dealing is body wide dermatitis but it never made it to VA (Which I did ask to be put into claim originally along with acne(which did make it??)) - DBQ was Tinea Verisicolor which is plain wrong backed by 2 biopsies. There is talk of biologics for it as its stumping 3 different dermatologists. I am puzzled how to go about it.

Spoke with lawyers who implore to just shut up and color (Verbiage that people with MH dont fight back typically) but I feel like TDRL is DoDs way to rid of me the fuck me over with lower rating later - when I dont have the resources/rights I have now. I think with UC and even dermatitis/tinea I could just be put out to pasture with PDRL and be done with it. Am I being an idiot or do I have a argument here for FPEB?

 

[Provis]

Few questions

I am being booted for PTSD/MDD with Ulcerative Colitis as a cherry on top. I am a little puzzled at the fact that I am placed on TDRL (I do understand most MH cases go the) but the verbiage of my NARSUM and even IPEB remarks is that the condition isnt going to improve (stable) NARSUM stating for over 3 years and IPEB for over 12 months. "The SM is not expected to improve sufficiently in the next 12 months to be able to perform his full duties" - no shit sherlock. Is this something worth fighting in FPEB? The MH rating is 70% (I find it fair assessment) and sole one for the DoD and the main referred condition.

Second question is that my Colitis(UC) has been a huge pain in my ass for the past year I had been MEBd with ALC one time for it already. The condition has been put into category 2 so it does not combine with DoD rating due to being "Controlled with Mesalamine" - non biologic pills/enemas. The condition is rated at 30% - I could argue 60%. Problem is that the justification seems very light as in I had a flare in 2022 and CDIFF(Due to round of prednisone) at one point. Reality I had flare for almost a year with multiple rounds of steroids - there is constant talk of "escalating treatment" - mesalamine is like holding the house up with a snot at this point. Not to mention I missed 95% of my work. I feel like the IPEB is full of shit on their remark and GI continually understates the severity.

Lastly I am dealing is body wide dermatitis but it never made it to VA (Which I did ask to be put into claim originally along with acne(which did make it??)) - DBQ was Tinea Verisicolor which is plain wrong backed by 2 biopsies. There is talk of biologics for it as its stumping 3 different dermatologists. I am puzzled how to go about it.

Spoke with lawyers who implore to just shut up and color (Verbiage that people with MH dont fight back typically) but I feel like TDRL is DoDs way to rid of me the fuck me over with lower rating later - when I dont have the resources/rights I have now. I think with UC and even dermatitis/tinea I could just be put out to pasture with PDRL and be done with it. Am I being an idiot or do I have a argument here for FPEB?

What does your DA199 say? Just because you are on TDRL for mental health doesn't mean the other conditions are TDRL too. UC may be PDRL as each unfitting condition gets its own determination. If 30% for UC is low why not submit a VARR to increase the ratings? Also, if that condition is PDRL it would lower the floor for financial gain since 60% is getting close to the 75% without considering the MH.

 

[Provis]

Few questions

I am being booted for PTSD/MDD with Ulcerative Colitis as a cherry on top. I am a little puzzled at the fact that I am placed on TDRL (I do understand most MH cases go the) but the verbiage of my NARSUM and even IPEB remarks is that the condition isnt going to improve (stable) NARSUM stating for over 3 years and IPEB for over 12 months. "The SM is not expected to improve sufficiently in the next 12 months to be able to perform his full duties" - no shit sherlock. Is this something worth fighting in FPEB? The MH rating is 70% (I find it fair assessment) and sole one for the DoD and the main referred condition.

Second question is that my Colitis(UC) has been a huge pain in my ass for the past year I had been MEBd with ALC one time for it already. The condition has been put into category 2 so it does not combine with DoD rating due to being "Controlled with Mesalamine" - non biologic pills/enemas. The condition is rated at 30% - I could argue 60%. Problem is that the justification seems very light as in I had a flare in 2022 and CDIFF(Due to round of prednisone) at one point. Reality I had flare for almost a year with multiple rounds of steroids - there is constant talk of "escalating treatment" - mesalamine is like holding the house up with a snot at this point. Not to mention I missed 95% of my work. I feel like the IPEB is full of shit on their remark and GI continually understates the severity.

Lastly I am dealing is body wide dermatitis but it never made it to VA (Which I did ask to be put into claim originally along with acne(which did make it??)) - DBQ was Tinea Verisicolor which is plain wrong backed by 2 biopsies. There is talk of biologics for it as its stumping 3 different dermatologists. I am puzzled how to go about it.

Spoke with lawyers who implore to just shut up and color (Verbiage that people with MH dont fight back typically) but I feel like TDRL is DoDs way to rid of me the fuck me over with lower rating later - when I dont have the resources/rights I have now. I think with UC and even dermatitis/tinea I could just be put out to pasture with PDRL and be done with it. Am I being an idiot or do I have a argument here for FPEB?

Also, you keep mentioning the DOD IPEB Etc. They only have a say on what is unfitting, combat related and TDRL vs PDRL in come circumstances etc. With mental health they must by law do TDRL. All the stuff about DBQ, ratings are from the VA not the the IPEB. The IPEB has no say in those things. That is why I suggesting a VARR to increase the ratings on the UC. If you have another unfitting condition you could request a FPEB to add a condition. Make sure you know what is what. Soldiers have screwed themselves in the past by requesting a FPEB for something that the FPEB can't change and once you get into a FPEB everything is on the table. Everything can be reviewed and or changed. VARR has little very little risk. They are going to keep the % the same or increase it.

 

[PERS-95]

You can't appeal TDRL vs PDRL. Specific to this case, you are *required* by law to be placed TDRL for PTSD, except in the very most severe cases.

As @Provis said, your other conditions may be permanent, but if you have even one condition rated temporary, you will be TDRL overall until it is resolved.

 

[RuffBader]

My understanding is that if PTSD is applied it is a mandatory TDLR

 

[popnik]

What does your DA199 say? Just because you are on TDRL for mental health doesn't mean the other conditions are TDRL too. UC may be PDRL as each unfitting condition gets its own determination. If 30% for UC is low why not submit a VARR to increase the ratings? Also, if that condition is PDRL it would lower the floor for financial gain since 60% is getting close to the 75% without considering the MH.

I dont have DA199... got AF 356 the IPEB decision where UC is in category 2 - can be unfitting but not currently unfitting so it doesn't get rated with Cat 1 where PTSD is sitting.

 

[popnik]

You can't appeal TDRL vs PDRL. Specific to this case, you are *required* by law to be placed TDRL for PTSD, except in the very most severe cases.

As @Provis said, your other conditions may be permanent, but if you have even one condition rated temporary, you will be TDRL overall until it is resolved.

My argument is along the lines of combing the UC and PTSD (Maybe derm problem) as 2 unfitting conditions which could put me in PDRL OR at least have them all in category one on the AF 365 as my UC is not going to be cured anytime soon. I dont really agree that my UC is stable right now as indicated by IPEB finding while PTSD/MDD is unstable just based off NARSUM and IPEB remarks. I am curious what law they use for MH that tells them to automatically toss it in unstable bucket.

 

[popnik]

Also, you keep mentioning the DOD IPEB Etc. They only have a say on what is unfitting, combat related and TDRL vs PDRL in come circumstances etc. With mental health they must by law do TDRL. All the stuff about DBQ, ratings are from the VA not the the IPEB. The IPEB has no say in those things. That is why I suggesting a VARR to increase the ratings on the UC. If you have another unfitting condition you could request a FPEB to add a condition. Make sure you know what is what. Soldiers have screwed themselves in the past by requesting a FPEB for something that the FPEB can't change and once you get into a FPEB everything is on the table. Everything can be reviewed and or changed. VARR has little very little risk. They are going to keep the % the same or increase it.

Thats a good point - something I may pursue as my C&P was sitting down with and NP and him filling out 15 DBQs while only asking when the problem started.

 

[PERS-95]

My argument is along the lines of combing the UC and PTSD (Maybe derm problem) as 2 unfitting conditions which could put me in PDRL OR at least have them all in category one on the AF 365 as my UC is not going to be cured anytime soon. I dont really agree that my UC is stable right now as indicated by IPEB finding while PTSD/MDD is unstable just based off NARSUM and IPEB remarks. I am curious what law they use for MH that tells them to automatically toss it in unstable bucket.

Good luck arguing. You're not the first and won't be the last, but you're wasting your effort.

 

[popnik]

Good luck arguing. You're not the first and won't be the last, but you're wasting your effort.

Thanks, I don't have much to lose at this point of time/process - I suppose you miss all the shots you don't take.

 

[Jason Perry]

There's a lot to unpack here and the usual caveats apply about not knowing all of the facts of your case. I am basing these comments on what I know from what you wrote and without knowing all of the details. Still, I can make some educated guesses.

but the verbiage of my NARSUM and even IPEB remarks is that the condition isnt going to improve (stable) NARSUM stating for over 3 years and IPEB for over 12 months. "The SM is not expected to improve sufficiently in the next 12 months to be able to perform his full duties"

First, understand that the language you cited is in reference to justifying your being boarded for this condition. If you were able to improve enough to return to full duties, you would not need to be boarded. This is separate from the issue of stability for rating purposes, which drives the TDRL vs. PDRL decision. The standard for TDRL is the likelihood that your condition will change over the 3 year TDRL period (or remaining portion of it if you have more than one re-evaluation) to make a difference in your rating.
Apples and Oranges.

Is this something worth fighting in FPEB?

On that specific issue (TDRL placement based on MH alone), probably not. But, see below. You are accurately tracking that with the addition of other unfitting conditions, you could meet the 80% threshold for those conditions to move you to PDRL.

Problem is that the justification seems very light as in I had a flare in 2022 and CDIFF(Due to round of prednisone) at one point. Reality I had flare for almost a year with multiple rounds of steroids - there is constant talk of "escalating treatment" - mesalamine is like holding the house up with a snot at this point. Not to mention I missed 95% of my work. I feel like the IPEB is full of shit on their remark and GI continually understates the severity.

Sounds like, based on the facts, you have an argument for the UC. But, the question is whether or not you have evidence to support the facts. You would want to have solid medical records, and acknowledgement of the facts you described in your AF 1185 (the form for your commander's statement, which are often not specific enough about the impact of each conditon and often fail to attribute symptoms to specific conditions).

Lastly I am dealing is body wide dermatitis but it never made it to VA (Which I did ask to be put into claim originally along with acne(which did make it??)) - DBQ was Tinea Verisicolor which is plain wrong backed by 2 biopsies. There is talk of biologics for it as its stumping 3 different dermatologists. I am puzzled how to go about it.

Same issue as my preceding comment. Factually, it sounds like you have a prettry strong argument. However, the question is whether you have supporting evidence. Sometimes, testimony at the FPEB is enough. However, that is not the preferred way to present your case. You will want to gather evidence if you pursue this argument.

Spoke with lawyers who implore to just shut up and color (Verbiage that people with MH dont fight back typically) but I feel like TDRL is DoDs way to rid of me the fuck me over with lower rating later - when I dont have the resources/rights I have now. I think with UC and even dermatitis/tinea I could just be put out to pasture with PDRL and be done with it. Am I being an idiot or do I have a argument here for FPEB?

I am guessing you spoke with AF OAC lawyers. I don't know what they have seen nor do I know where they are coming from or the basis for any advice they gave. That said, it is not unusual for military counsel, often burdened with a heavy case load, to do a quick assesment/"triage," and prioritize how much effort they want to give any one case. I would not be shocked if they just thought, "70% is pretty good, he's got 100% VA, I have 10 other cases this week, it would be easier for me to persuade him to accept the findings and I can focus on my other cases with worse IPEB outcomes."
Based on what you wrote, I think you have a case. It may well be, based on other factors, that you are at max compensation. (I don't know your years of service, whether your MH is combat-related, etc.). So, there are factors that may weigh towards it being a great, if not technically correct, outcome.

With mental health they must by law do TDRL.

Not always, as it is a somewhat gray area in certain circumstances. If you said, by law they must award at least 50% on a temporary basis for seperation from the military as a result of a highly stressful event, then I would agree. But, in practice, I have seen folks placed on PDRL with a 30% rating for PTSD. How they got there factually was based on the condition being present for years with little change in treatment. Now, the member liked that finding and had other conditions that made this outcome make sense. Without challenging it, the member was placed on PDRL with a 30% rating at the IPEB. Had the member challenged it, I am near certain they would have been placed on TDRL at 50%.
There is, of course, the other issue, where the member has other conditions that are unfitting and combine to 80%. In that case, no TDRL required. (Note, also, this is just DoD side, the VA will sitll be bound by 38 CFR 4.129).
I don't mean to sharpshoot here and in 98% of cases, I would agree with the gist of this. I just point out that it is not always the case.

That is why I suggesting a VARR to increase the ratings on the UC.

No VARR available for UC, at least not yet. It is not unfitting at the IPEB, and VARR is only for unfitting conditions. The approach would be to get it unfitting at the FPEB and then VARR.

You can't appeal TDRL vs PDRL. Specific to this case, you are *required* by law to be placed TDRL for PTSD, except in the very most severe cases.

You can. But, it is unlikely to prevail and, if that is the only issue (arguing that a PTSD case should be moved to PDRL instead of TDRL based on only the stability argument), it is almost certainly to lose.
I really only point this out to illustrate a point. The stability question is based on the finding that it is likely that the condition will worsen or improve over the TDRL period to make a difference for rating purposes. So, if you appeal and lose, the BCMR/BCNR is almost certainly not going to overturn the PEB. That leaves the Federal Courts. And they are almost certainly not going to overtun the PEB on this issue. Why? Two reasons. First, likely a lack of jurisdiction. Just on the temporary issue, you are not out any money based on that finding. So, no "legal injury," which means no jurisdiction to hear the case. Second, it may not even be justiciable; that is, the standards are so subjective and based on the future, not on the present, that I think a court, even if it thought there was a legal injury, would decline to rule on the issue based on it being non-justiciable.

I am curious what law they use for MH that tells them to automatically toss it in unstable bucket.

38 CFR 4.129.

Good luck arguing. You're not the first and won't be the last, but you're wasting your effort.

I would tend to agree on just the baseline PDRL for just MH. But, I can see successful arguments if he gets the additional conditions moved to unfitting.

Hope this helped!

 

[Jason Perry]

I am following up to make clear two points. Most everyone provided answers that make sense and would apply to the baseline issue of appealing a TDRL finding based solely on MH condition. However, there are rare instances with nuances where a member is not always placed on the TDRL with MH conditions caused by stressful events. I had a case about 6 months age where the member was placed on PDRL in such a case and essentially, I think that the combination of other factors (years of service, and 100% VA rating for other conditions) led the PEB to basically bend over backwards to write it up in such a way as to obviate the need to do a TDRL review when there was next to no chance that the overall DoD compensation would change. Why do I suspect that? Because the PEBs are not fans of creating extra work for themselves down the road if they can avoid it. The other point is that it is always important to keep the big picture in mind. Sure, an appeal of a TDRL finding in the abstract is almost always going to lose (and would likely annoy everyone as a waste of time), but add in the potential for additional unfitting conditions, and the whole analysis changes.

 

[Provis]

There's a lot to unpack here and the usual caveats apply about not knowing all of the facts of your case. I am basing these comments on what I know from what you wrote and without knowing all of the details. Still, I can make some educated guesses.


First, understand that the language you cited is in reference to justifying your being boarded for this condition. If you were able to improve enough to return to full duties, you would not need to be boarded. This is separate from the issue of stability for rating purposes, which drives the TDRL vs. PDRL decision. The standard for TDRL is the likelihood that your condition will change over the 3 year TDRL period (or remaining portion of it if you have more than one re-evaluation) to make a difference in your rating.
Apples and Oranges.


On that specific issue (TDRL placement based on MH alone), probably not. But, see below. You are accurately tracking that with the addition of other unfitting conditions, you could meet the 80% threshold for those conditions to move you to PDRL.


Sounds like, based on the facts, you have an argument for the UC. But, the question is whether or not you have evidence to support the facts. You would want to have solid medical records, and acknowledgement of the facts you described in your AF 1185 (the form for your commander's statement, which are often not specific enough about the impact of each conditon and often fail to attribute symptoms to specific conditions).

Same issue as my preceding comment. Factually, it sounds like you have a prettry strong argument. However, the question is whether you have supporting evidence. Sometimes, testimony at the FPEB is enough. However, that is not the preferred way to present your case. You will want to gather evidence if you pursue this argument.

I am guessing you spoke with AF OAC lawyers. I don't know what they have seen nor do I know where they are coming from or the basis for any advice they gave. That said, it is not unusual for military counsel, often burdened with a heavy case load, to do a quick assesment/"triage," and prioritize how much effort they want to give any one case. I would not be shocked if they just thought, "70% is pretty good, he's got 100% VA, I have 10 other cases this week, it would be easier for me to persuade him to accept the findings and I can focus on my other cases with worse IPEB outcomes."
Based on what you wrote, I think you have a case. It may well be, based on other factors, that you are at max compensation. (I don't know your years of service, whether your MH is combat-related, etc.). So, there are factors that may weigh towards it being a great, if not technically correct, outcome.

Not always, as it is a somewhat gray area in certain circumstances. If you said, by law they must award at least 50% on a temporary basis for seperation from the military as a result of a highly stressful event, then I would agree. But, in practice, I have seen folks placed on PDRL with a 30% rating for PTSD. How they got there factually was based on the condition being present for years with little change in treatment. Now, the member liked that finding and had other conditions that made this outcome make sense. Without challenging it, the member was placed on PDRL with a 30% rating at the IPEB. Had the member challenged it, I am near certain they would have been placed on TDRL at 50%.
There is, of course, the other issue, where the member has other conditions that are unfitting and combine to 80%. In that case, no TDRL required. (Note, also, this is just DoD side, the VA will sitll be bound by 38 CFR 4.129).
I don't mean to sharpshoot here and in 98% of cases, I would agree with the gist of this. I just point out that it is not always the case.

No VARR available for UC, at least not yet. It is not unfitting at the IPEB, and VARR is only for unfitting conditions. The approach would be to get it unfitting at the FPEB and then VARR.

You can. But, it is unlikely to prevail and, if that is the only issue (arguing that a PTSD case should be moved to PDRL instead of TDRL based on only the stability argument), it is almost certainly to lose.
I really only point this out to illustrate a point. The stability question is based on the finding that it is likely that the condition will worsen or improve over the TDRL period to make a difference for rating purposes. So, if you appeal and lose, the BCMR/BCNR is almost certainly not going to overturn the PEB. That leaves the Federal Courts. And they are almost certainly not going to overtun the PEB on this issue. Why? Two reasons. First, likely a lack of jurisdiction. Just on the temporary issue, you are not out any money based on that finding. So, no "legal injury," which means no jurisdiction to hear the case. Second, it may not even be justiciable; that is, the standards are so subjective and based on the future, not on the present, that I think a court, even if it thought there was a legal injury, would decline to rule on the issue based on it being non-justiciable.

38 CFR 4.129.

I would tend to agree on just the baseline PDRL for just MH. But, I can see successful arguments if he gets the additional conditions moved to unfitting.

Hope this helped!

Thought this "I am being booted for PTSD/MDD with Ulcerative Colitis as a cherry on top." meant he was found unfitting for UC" I read this "The condition has been put into category 2 so it does not combine with DoD rating due to being "Controlled with Mesalamine".

Is category 2 mean fitting? Just trying to learn the lingo for AF. There is so much to learn especially between the differences between each branch!

 

[Jason Perry]

Thought this "I am being booted for PTSD/MDD with Ulcerative Colitis as a cherry on top." meant he was found unfitting for UC" I read this "The condition has been put into category 2 so it does not combine with DoD rating due to being "Controlled with Mesalamine".

Is category 2 mean fitting? Just trying to learn the lingo for AF. There is so much to learn especially between the differences between each branch!

Yeah. The AF lists 3 Categories on their PEB findings (AF 356):

CATEGORY I - UNFITTING CONDITIONS
CATEGORY II - CONDITIONS THAT CAN BE UNFITTING BUT ARE NOT CURRENTLY UNFITTING
CATEGORY III - CONDITIONS THAT ARE NOT UNFITTING AND NOT COMPENSABLE OR RATABLE

 

[Provis]

Yeah. The AF lists 3 Categories on their PEB findings (AF 356):

CATEGORY I - UNFITTING CONDITIONS
CATEGORY II - CONDITIONS THAT CAN BE UNFITTING BUT ARE NOT CURRENTLY UNFITTING
CATEGORY III - CONDITIONS THAT ARE NOT UNFITTING AND NOT COMPENSABLE OR RATABLE

Thanks! I learn something new everyday!

 

[popnik]

There's a lot to unpack here and the usual caveats apply about not knowing all of the facts of your case. I am basing these comments on what I know from what you wrote and without knowing all of the details. Still, I can make some educated guesses.


First, understand that the language you cited is in reference to justifying your being boarded for this condition. If you were able to improve enough to return to full duties, you would not need to be boarded. This is separate from the issue of stability for rating purposes, which drives the TDRL vs. PDRL decision. The standard for TDRL is the likelihood that your condition will change over the 3 year TDRL period (or remaining portion of it if you have more than one re-evaluation) to make a difference in your rating.
Apples and Oranges.


On that specific issue (TDRL placement based on MH alone), probably not. But, see below. You are accurately tracking that with the addition of other unfitting conditions, you could meet the 80% threshold for those conditions to move you to PDRL.


Sounds like, based on the facts, you have an argument for the UC. But, the question is whether or not you have evidence to support the facts. You would want to have solid medical records, and acknowledgement of the facts you described in your AF 1185 (the form for your commander's statement, which are often not specific enough about the impact of each conditon and often fail to attribute symptoms to specific conditions).

Same issue as my preceding comment. Factually, it sounds like you have a prettry strong argument. However, the question is whether you have supporting evidence. Sometimes, testimony at the FPEB is enough. However, that is not the preferred way to present your case. You will want to gather evidence if you pursue this argument.

I am guessing you spoke with AF OAC lawyers. I don't know what they have seen nor do I know where they are coming from or the basis for any advice they gave. That said, it is not unusual for military counsel, often burdened with a heavy case load, to do a quick assesment/"triage," and prioritize how much effort they want to give any one case. I would not be shocked if they just thought, "70% is pretty good, he's got 100% VA, I have 10 other cases this week, it would be easier for me to persuade him to accept the findings and I can focus on my other cases with worse IPEB outcomes."
Based on what you wrote, I think you have a case. It may well be, based on other factors, that you are at max compensation. (I don't know your years of service, whether your MH is combat-related, etc.). So, there are factors that may weigh towards it being a great, if not technically correct, outcome.

Not always, as it is a somewhat gray area in certain circumstances. If you said, by law they must award at least 50% on a temporary basis for seperation from the military as a result of a highly stressful event, then I would agree. But, in practice, I have seen folks placed on PDRL with a 30% rating for PTSD. How they got there factually was based on the condition being present for years with little change in treatment. Now, the member liked that finding and had other conditions that made this outcome make sense. Without challenging it, the member was placed on PDRL with a 30% rating at the IPEB. Had the member challenged it, I am near certain they would have been placed on TDRL at 50%.
There is, of course, the other issue, where the member has other conditions that are unfitting and combine to 80%. In that case, no TDRL required. (Note, also, this is just DoD side, the VA will sitll be bound by 38 CFR 4.129).
I don't mean to sharpshoot here and in 98% of cases, I would agree with the gist of this. I just point out that it is not always the case.

No VARR available for UC, at least not yet. It is not unfitting at the IPEB, and VARR is only for unfitting conditions. The approach would be to get it unfitting at the FPEB and then VARR.

You can. But, it is unlikely to prevail and, if that is the only issue (arguing that a PTSD case should be moved to PDRL instead of TDRL based on only the stability argument), it is almost certainly to lose.
I really only point this out to illustrate a point. The stability question is based on the finding that it is likely that the condition will worsen or improve over the TDRL period to make a difference for rating purposes. So, if you appeal and lose, the BCMR/BCNR is almost certainly not going to overturn the PEB. That leaves the Federal Courts. And they are almost certainly not going to overtun the PEB on this issue. Why? Two reasons. First, likely a lack of jurisdiction. Just on the temporary issue, you are not out any money based on that finding. So, no "legal injury," which means no jurisdiction to hear the case. Second, it may not even be justiciable; that is, the standards are so subjective and based on the future, not on the present, that I think a court, even if it thought there was a legal injury, would decline to rule on the issue based on it being non-justiciable.

38 CFR 4.129.

I would tend to agree on just the baseline PDRL for just MH. But, I can see successful arguments if he gets the additional conditions moved to unfitting.

Hope this helped!

Thank you so much for detailed response it is extremely enlightening and gives me some hope. The MH condition was incurred in "combat zone in performance of combat related duties" and was marked as a yes for section F(one for the NDAA 2008 Sec 1646) on the form. I was also stuck into AF Wounded Warrior program. I will have 8 years of service this summer - if I accept now I will be at 8 years when I get my DD214.

Additionally, I have read on this forum folks writing a rebuttal and IPEB approving finding adjustments before FPEB even convenes - statistically, is that a common occurrence nowadays?

 

[popnik]

Thought this "I am being booted for PTSD/MDD with Ulcerative Colitis as a cherry on top." meant he was found unfitting for UC" I read this "The condition has been put into category 2 so it does not combine with DoD rating due to being "Controlled with Mesalamine".

Is category 2 mean fitting? Just trying to learn the lingo for AF. There is so much to learn especially between the differences between each branch!

Yeah its fitting as it stands now - I am puzzled as to why I was MEB'd for it initially and it was marked as stable this go round while I have medical evidence that condition is slowly and continually going south - worst case why not find this condition as unstable and throw me on TDRL as this is something worth re-evaluating.

 

[Gizzy]

There's a lot to unpack here and the usual caveats apply about not knowing all of the facts of your case. I am basing these comments on what I know from what you wrote and without knowing all of the details. Still, I can make some educated guesses.


First, understand that the language you cited is in reference to justifying your being boarded for this condition. If you were able to improve enough to return to full duties, you would not need to be boarded. This is separate from the issue of stability for rating purposes, which drives the TDRL vs. PDRL decision. The standard for TDRL is the likelihood that your condition will change over the 3 year TDRL period (or remaining portion of it if you have more than one re-evaluation) to make a difference in your rating.
Apples and Oranges.


On that specific issue (TDRL placement based on MH alone), probably not. But, see below. You are accurately tracking that with the addition of other unfitting conditions, you could meet the 80% threshold for those conditions to move you to PDRL.


Sounds like, based on the facts, you have an argument for the UC. But, the question is whether or not you have evidence to support the facts. You would want to have solid medical records, and acknowledgement of the facts you described in your AF 1185 (the form for your commander's statement, which are often not specific enough about the impact of each conditon and often fail to attribute symptoms to specific conditions).

Same issue as my preceding comment. Factually, it sounds like you have a prettry strong argument. However, the question is whether you have supporting evidence. Sometimes, testimony at the FPEB is enough. However, that is not the preferred way to present your case. You will want to gather evidence if you pursue this argument.

I am guessing you spoke with AF OAC lawyers. I don't know what they have seen nor do I know where they are coming from or the basis for any advice they gave. That said, it is not unusual for military counsel, often burdened with a heavy case load, to do a quick assesment/"triage," and prioritize how much effort they want to give any one case. I would not be shocked if they just thought, "70% is pretty good, he's got 100% VA, I have 10 other cases this week, it would be easier for me to persuade him to accept the findings and I can focus on my other cases with worse IPEB outcomes."
Based on what you wrote, I think you have a case. It may well be, based on other factors, that you are at max compensation. (I don't know your years of service, whether your MH is combat-related, etc.). So, there are factors that may weigh towards it being a great, if not technically correct, outcome.

Not always, as it is a somewhat gray area in certain circumstances. If you said, by law they must award at least 50% on a temporary basis for seperation from the military as a result of a highly stressful event, then I would agree. But, in practice, I have seen folks placed on PDRL with a 30% rating for PTSD. How they got there factually was based on the condition being present for years with little change in treatment. Now, the member liked that finding and had other conditions that made this outcome make sense. Without challenging it, the member was placed on PDRL with a 30% rating at the IPEB. Had the member challenged it, I am near certain they would have been placed on TDRL at 50%.
There is, of course, the other issue, where the member has other conditions that are unfitting and combine to 80%. In that case, no TDRL required. (Note, also, this is just DoD side, the VA will sitll be bound by 38 CFR 4.129).
I don't mean to sharpshoot here and in 98% of cases, I would agree with the gist of this. I just point out that it is not always the case.

No VARR available for UC, at least not yet. It is not unfitting at the IPEB, and VARR is only for unfitting conditions. The approach would be to get it unfitting at the FPEB and then VARR.

You can. But, it is unlikely to prevail and, if that is the only issue (arguing that a PTSD case should be moved to PDRL instead of TDRL based on only the stability argument), it is almost certainly to lose.
I really only point this out to illustrate a point. The stability question is based on the finding that it is likely that the condition will worsen or improve over the TDRL period to make a difference for rating purposes. So, if you appeal and lose, the BCMR/BCNR is almost certainly not going to overturn the PEB. That leaves the Federal Courts. And they are almost certainly not going to overtun the PEB on this issue. Why? Two reasons. First, likely a lack of jurisdiction. Just on the temporary issue, you are not out any money based on that finding. So, no "legal injury," which means no jurisdiction to hear the case. Second, it may not even be justiciable; that is, the standards are so subjective and based on the future, not on the present, that I think a court, even if it thought there was a legal injury, would decline to rule on the issue based on it being non-justiciable.

38 CFR 4.129.

I would tend to agree on just the baseline PDRL for just MH. But, I can see successful arguments if he gets the additional conditions moved to unfitting.

Hope this helped!

This answer takes the cake. 10/10

 

[popnik]

Just to follow up in case someone is looking for similar information.

I appealed to FPEB and attorney did a adjudication summary - he chose to do it as I had a decent leg to stand on just based off documentation. I have also gotten some fresh labs done as well and supervisor and doctor note stating that UC is not well controlled based off recent labs etc. FPEB concurred and added UC as unstable and unfitting - I assume they will be following up later on it so I will continue going to the docs and get it treated.

Overall bit of a stressful experience however ODC did a great job in coaching me through the process as well as help obtain relevant evidence. Key to getting their attention is not flaking out when they advised me that i could be risking it all (Obviously) and getting relevant paperwork. Searching and reading this forum and analysis from Jason(above) helped tremendously in understanding and advocating for myself throughout the process - so thank you! Praying helped quite as well also.

Here we go with TDRL shenanigans... I have some understanding how MH TDRL works however not so sure what to expect with colitis - assumption is I need to keep bugging GI docs wherever I end up retiring at... hopefully I get tossed on PDRL and be forgotten already soon enough.