After 14 years BCMR

Edna

PEB Forum Regular Member
Registered Member
Hello Jason,

I recently join the group. I was searching for the PEBD/BCMR form and it happened the site direct me to this forum. I need help and advice. I was in the Army for 8 years and 8 month and I was separated with 10% disability severance pay in July 2002. The same year I immediately applied for VA and I was granted 50% in 2003 and now 70% rate through VA.

I received a letter from the VA that I may qualify for PDBR/BCMR. I need to know if I can still argue this claim to BCMR to correct my medical record and received proper entitlement after 14 years separated in the Army? This is the rating I received from the Army PEB. Also, some medical problem that my case manager did not include on my claim. Your help and quick response is greatly appreciated.

I was rate 10% service connected disability for my knee.
Pes Anserinus Tendonitis Left Knee DNEPTS, ICD-9-CM 726.6 and

0% for the following claim:

Low Back Pain
Chronic Calcific Shoulder Tendonitis
Calcium Deposits in Tendon and Bursa
Sciatica, Left Lower Extremity
Spondylosis, Cervical

Not included on my Medical board or claim

Severe Migraine headache
Left ankle pain
Right foot pain
Right knee pain
Upper back pain
Gastritis with abdominal pain
Right shoulder bursitis

V/R
Ms Edna Fraker
 

FloridaInjuredInCombat

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
I believe that there is a six year statue of limitations on filing a claim.

That said, in my case, the Army failed in their duty to process my LOD, and as a result failed in their duty to provide medical and financial support for that LOD injury. My claim for this is well past the 6 year limitation if they consider it solely on when the legal injury to me occurred, BUT, I plan to argue that this clock starts at the time of DISCOVERY of the legal injury since the Army either intentionally or through gross negligence hid their damages against me for that period of time, and the clock should legally start at the time I discovered it (which is within the 6 year limitation).

Hope this helps...
 

Edna

PEB Forum Regular Member
Registered Member
Six year statue of limitation? Do I need to hire a lawyer? What about PDBR?
What are my chances of re-evaluating my medical result from 10% to much higher rate?
Please advise....

v/r
Edna
 

Jason Perry

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I need to know if I can still argue this claim to BCMR to correct my medical record and received proper entitlement after 14 years separated in the Army?
You can submit a claim to the BCMR. However, there is an "administrative" statute of limitations of three years to have your case heard "as of right." However, this time limit must be excused if it is "in the interest of justice" to do so. This has been interpreted by at least one highly regarded Federal Court to mean that if your case is meritorious, the board should excuse any filing outside of the time limits before the BCMR.

As discussed, below, though, I think you have a rock solid basis, based on what you have provided, for filing with the PDBR.

I believe that there is a six year statue of limitations on filing a claim.
The six years is a jurisdictional limit/requirement for filing in Federal Court. This can be a complicated issue and there are exceptions.

Six year statue of limitation? Do I need to hire a lawyer? What about PDBR?
Whether or not you "need a lawyer" is a call you have to make. Sounds to me like you have a number of issues that may be hard/difficult to navigate without legal help from an experienced attorney.

I think you have a good basis for filing a PDBR application.

Hope this helped. Best of luck! Any other questions, please feel free to post them.
 

Edna

PEB Forum Regular Member
Registered Member
Thanks for the reply and advice. I will search more on PDBR.

Last two question:

1. Does anyone have samples on what to write on black # 3 & 4?
2. Can I add other medical issues that was not on the initial claim? I have copy of medical record as evidence.

v/r
 

Cassdw70

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
Six year statue of limitation? Do I need to hire a lawyer? What about PDBR?
What are my chances of re-evaluating my medical result from 10% to much higher rate?
Please advise....

v/r
Edna
If you do the PDBR your time starts over. Do the PDBR first, then if you have a disagreement you have the right to request a record correction. It is part of the directive. If you google air for physical disability board of review you'll see some of the outcomes. If you were separated for a single knee condition you are unlikely to get 30% as that's basically a complete loss of use (40% is the total disability for a leg, check the CFR 38 and you'll see the percentage based on that). Also, they will not look at anything that wasn't addressed at the PEB. It must have been unfitting or not unfitting on your PEB for them to consider it. Remember to put "please consider all conditions" on the application. Even if you don't get a retirement it's to your benefit if you think there's an error in your records to apply to the PDBR, there is never a penalty. You either get rated the same or higher, they can't lower it. Best of luck!
 

Edna

PEB Forum Regular Member
Registered Member
I submitted my PDBR application last June 2017 how long it takes to hear from the board? Do I need to call for follow up?
I'm not too sure if they receive my application or not. Please advise. Thanks
 

Jason Perry

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If you do the PDBR your time starts over.
If you mean the statute of limitations starts over, that is not the case under most circumstances. The statute starts to run when the first competent board (usually the PEB, but if you never had one, then when the BCMR considers the case).

That is how the courts have treated the statute of limitations. However, I do see a legal argument for a "restart" of statute of limitations after PDBR in some cases. It would by no means be an easy argument to win (and might take appeals to higher courts to get a full answer).

You should count the statute of limitations as starting from the date of separation/retirement after a PEB.

Do the PDBR first, then if you have a disagreement you have the right to request a record correction. It is part of the directive.
You cannot request the BCMR to review an issue that the PDBR considered previously

Also, they will not look at anything that wasn't addressed at the PEB.
They will if you request it specifically. Best to ask for specific consideration of each condition you want them to look at.

Remember to put "please consider all conditions" on the application.
Generally, this is good to ask for, but, even better to ensure you ask for consideration and present arguments and evidence for each specific condition. You can just ask them to review your case, but presenting argument and evidence about each condition is the better way to increase the chances of success.

Even if you don't get a retirement it's to your benefit if you think there's an error in your records to apply to the PDBR, there is never a penalty. You either get rated the same or higher, they can't lower it. Best of luck!
This is a good point and there is no reason not to pursue an appeal when you suspect that you have been denied your due compensation and benefits.
 

Cassdw70

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
I submitted my PDBR application last June 2017 how long it takes to hear from the board? Do I need to call for follow up?
I'm not too sure if they receive my application or not. Please advise. Thanks
Edna, unfortunately, if you look at the outcomes of the boards it often takes years. There haven't been any decisions posted since April 2017 and those were from FY2015 and before. There were some abnormalities (to put it nicely, they were basically still putting it to the service members) that required them to shut the board down and reorganize it again. Best of luck!
 

Edna

PEB Forum Regular Member
Registered Member
Thank you very much for all the feed back and information that you share on the forum.
 

White2bear

PEB Forum Regular Member
Registered Member
I believe that there is a six year statue of limitations on filing a claim.

That said, in my case, the Army failed in their duty to process my LOD, and as a result failed in their duty to provide medical and financial support for that LOD injury. My claim for this is well past the 6 year limitation if they consider it solely on when the legal injury to me occurred, BUT, I plan to argue that this clock starts at the time of DISCOVERY of the legal injury since the Army either intentionally or through gross negligence hid their damages against me for that period of time, and the clock should legally start at the time I discovered it (which is within the 6 year limitation).

Hope this helps...
How did this work out for you? Similar situation here, we just found out I was processed and separated as "non duty related" for active duty conditions
 

RonG

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This is an old thread where most of the comments were made more than a year ago.

The “six year law” mentioned above can be viewed at https://www.law.cornell.edu/cfr/text/5/178.104

Recommend reading Jason Perry’s remarks on the statute of limitations and exceptions.

Ron
(not an attorney)
 

Edna

PEB Forum Regular Member
Registered Member
You can submit a claim to the BCMR. However, there is an "administrative" statute of limitations of three years to have your case heard "as of right." However, this time limit must be excused if it is "in the interest of justice" to do so. This has been interpreted by at least one highly regarded Federal Court to mean that if your case is meritorious, the board should excuse any filing outside of the time limits before the BCMR.

As discussed, below, though, I think you have a rock solid basis, based on what you have provided, for filing with the PDBR.


The six years is a jurisdictional limit/requirement for filing in Federal Court. This can be a complicated issue and there are exceptions.


Whether or not you "need a lawyer" is a call you have to make. Sounds to me like you have a number of issues that may be hard/difficult to navigate without legal help from an experienced attorney.

I think you have a good basis for filing a PDBR application.

Hope this helped. Best of luck! Any other questions, please feel free to post them.


Hello Mr. Jason,


I received my PDBR result. They increase 10 % for my shoulder total of 20% without increase on severance pay and they didn't honor other medical claim the VA rated. I guest my biggest question is, do I have another chance or can I submit to the Board of correction for medical record or BCMR. Please advice, Your quick response for this matters is greatly appreciated.

Thanks
Edna
 

RonG

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Hello @Edna,
cc: @Jason Perry

You said, "They increase 10 % for my shoulder total of 20% without increase on severance pay..." A increase in DoD disability percentage never increases the amount of severance pay if one qualified for it previously (i.e., having a DoD rated disability below 30%).

Disability Severance Pay is a one-time, lump sum payment and is computed as follows:
  • 2 x basic pay for applicable grade x years of service (subject to minimum 3 or 6 years) not to exceed 19 years.

The web page for Jason Perry shows:
email contact: [email protected] (note the period after his first name)

Telephone contact: (800) 576-5648

Ron
 

chaplaincharlie

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As RonG pointed out, severance is not based on disability but years of service and basic pay.
 
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