Am I risking my VA 100% Disability Rating by insisting on an MEB/PEB?

Gary

Registered Member
Hi everyone,

I have a little different situation, I think, in that unlike some people, I received my VA disability rating first, but am still in the National Guard, and now am trying to get separated via the MEB/PEB process. Anyway:

I was active duty from 2005-2009. While on active duty, I experienced some serious mental health trauma.

I left active duty in 2009, and without a break in service, I joined the National Guard to fulfill my MSO. On the day I ETS'd from active duty, I gave the VA my medical records and filed a VA claim.

As I was beginning my National Guard service, I got rated by the VA. So, in other words, I ETS'd from active duty in July 2009, filed a VA claim at the same time I immediately joined the National Guard, then got rated by the VA in January 2010.

When the VA rated me at 70% in 2010, I turned in my VA rating to the Guard but no action was taken to remove me from the Guard. In the past year or so, my VA rating has increased to 100% -- mostly for mental health conditions.

Now it is 2016. In October 2013, life finally became too difficult for me in the Guard and I requested to leave via the MEB/PEB process. I went to my state's Guard psychologist and was evaluated, then requested that my unit let me do an MEB/PEB. They, essentially, agreed.

However, my unit has essentially dithered on the process. It is now 28 months later and my paperwork is feebly making its way through the state surgeon's office.

I was at drill this weekend, because I still have to go. I actually was scheduled to ETS last July, 2015, but was extended for 12 months to complete the MEB process. My unit, as is their tradition, keeps offering me other ways to leave the Guard instead of going through MEB/PEB. One year ago, they were going to just let me get out via some sort of medical agreement (but not MEB/PEB). Now, they are stating I should just get out on my next ETS date in July 2016. But they cannot stop me from doing an MEB/PEB. It just always occurs that some paperwork gets lost or something doesn't get filed right, and the MEB/PEB keeps getting delayed.

My commander advised me this past weekend with this logic: The logic now is that, if I go through the MEB/PEB process, I will risk my VA rating of 100%. To the extent that I may have to pay back money I've been given by my 100% rating.

This seems strange to me. I am aware that VA ratings can be reduced, especially for conditions that may improve, such as my mental health condition. But I have records that show what happened on active duty, and these records form the basis for my 100% VA rating. I have plenty of mental health records showing that my condition is not improving and that I am seeing VA and other mental health professionals.

I feel like my unit is portraying my situation now like a "Let's Make A Deal" dramatization: I can either take my VA 100% rating and go home, or I can risk it on getting an MEB/PEB rating. I may get an MEB/PEB rating, but, even if I do, this may trigger some action that may reduce my VA rating.

*Note: The reason why I am so gung-ho about getting an MEB/PEB rating is this:

My injuries did not happen on active duty, so I am not allowed to collect both VA and Military pensions. So, I'm not in it for the money.

But, my understanding of these ratings is that they are independent and operate with different criteria in mind. So, it seems to me that it is advantageous to get an MEB/PEB rating. In the event that the VA lowers my disability rating at any time in the future for any reason, I will still have the MEB/PEB rating to fall back on, or vice versa. I am aware that whatever rating is higher is the rating at which I will be paid.

Additionally, I fully believe I should receive a medical military retirement. I was going to serve 20 years, but the military did things to me that disabled me from doing so. That is not my fault. Therefore, I feel I should get the rights of a retired military veteran, if not the money: a CAC card that allows me base privileges, ability to fly Space A, etc.

So, in the end, all I want is the opportunity to be considered for an MEB/PEB rating of at least 30% so I can keep my CAC when I leave the Guard. But my unit is making all kinds of noise that if I do that, well, all of those things I mentioned above will happen, such as that my VA rating will be lowered and I will have to pay back VA disability money.

Just today I told my unit to continue to prosecute my MEB/PEB. By doing so, I will probably have to extend my contract another year from July. Otherwise, I could leave the National Guard this July.

I really want to have the CAC benefits and the Space A Privileges and the TriCare ability for myself and my wife, if I get more than 30% of a rating from the Guard.

What do you guys think? My disability is not from combat, but from an abusive commander with whom I worked closely for two years, then another one in the Guard for five years. I don't know if that biases evaluators against me, since my condition is not combat-related.

Should I just get out in July and take the "Let's Make a Deal" VA Disability of 100%, or should I continue to stay in to fight for an MEB/PEB rating?

Am I really risking my 100% VA Disability Rating by doing so? I understand that the VA is keenly interested in my getting better, and, if I show improvement, they have all the right to re-evaluate me and reduce my rating based on that evaluation. But would a reduction in VA rating occur automatically as a result of an MEB/PEB evaluation? I actually think I have gotten worse in the past years since my last evaluation, anyway.

*Of note: I am 100% for PTSD. It is not improving. I see a psychologist and a psychiatrist at the VA, and my functional abilities are declining over the past 9 years.

Thanks, any answers are welcome!
 

scoutCC

PEB Forum Veteran
Registered Member
My injuries did not happen on active duty, so I am not allowed to collect both VA and Military pensions. So, I'm not in it for the money.
This is confusing to me. Your MH sounds like it started while on active duty. That is what service-connection generally means. Also, if it didn't, you're not eligible for the MEB. It definitely sounds like it started while on active duty, since your initial claim was immediately after service. You are mostly correct though, it is unlikely to result in more money. Not without CRSC (combat related).

My commander advised me this past weekend with this logic: The logic now is that, if I go through the MEB/PEB process, I will risk my VA rating of 100%. To the extent that I may have to pay back money I've been given by my 100% rating.
There is always a risk when dealing with the VA that they will lower a rating, but you sound confident that will not be the case. Paying back won't be an issue unless something about the process uncovers some level of fraud. I doubt the commander's concerns are particularly valid. It is most definitely not automatic.

What do you guys think?
It sounds like your deserve a MEB. It sounds like the primary risk (taking a year+ for an answer) isn't as important to you as the reward (ID card, space-A, insurance, and really the main thing sounds like the justice of it). I'd probably pursue it.
 

SadrCity_11B

PEB Forum Veteran
Registered Member
I think your fine brother. I am in a similar situation but with the Reserves. Almost the exact situation. Regular Army infantry 2005-2009 diagnosed PTSD, BACK&Ankle injuries, misc others. As soon as I ended my contract I sent my paperwork to the Via at the same time joined the army reserves. I was rated at 60% though. I went on title 10 orders the last 2.5 yrs for a conus mission and my injuries and illnesses further worsen which lead the Army to red flag me at my demob location. I am currently at WTU but I have yet began a MED Board but was advised it will be starting shortly per my PCM.

To answer your question, I have spoken with a VA Rep via phone and in person who stated it is a low possibility of my VA rating decreasing but more like increases. Think about it if you were diagnosed for PTSD right after AD and you attempted to continued your career in the NG but your issues gotten worse and you have the evidence that the issues are not getting better. With more time in service come rank, comes more responsibility and with a lot of people with PTSD or Anxiety issues it makes things a lot more stressful and taxing. I believe you have nothing to fear due to the fact you cannot hold gainful employment which is part of 100% and that why you are being med boarded. I don't see your rating changing.

Worst case say they lower it to 50 or 70% and you get DOD 50 or 70%, you have Tricare benefits for your entire family and other great benefits and you might qualify for CRSC "Combat Related Service Connection", which is another tax free compensation for injuries or illnesses acquired for Combat related - doesn't mean you had to be in a warzone exactly but here : http://www.dfas.mil/retiredmilitary/disability/crsc.html

"
Combat Related Special Compensation (CRSC)
Combat Related Special Compensation (CRSC) is a program that was created for disability and non-disability military retirees with combat-related disabilities. It is a tax free entitlement that you will be paid each month along with any retired pay you may already be receiving.
Eligibility
To qualify for CRSC you must:

  • be entitled to and/or receiving military retired pay
  • be rated at least 10 percent by the Department of Veteran’s Affairs (VA)
  • waive your VA pay from your retired pay
  • file a CRSC application with your Branch of Service
Disabilities that may be considered combat related include injuries incurred as a direct result of:
  • Armed Conflict
  • Hazardous Duty
  • An Instrumentality of War
  • Simulated War
 

Gary

Registered Member
SORRY YOU GUYS!

I made a mistake when I wrote my initial post.

YES my injury happened on active duty, and it was exacerbated in the Guard. What I meant to state was this:

My injury did not happen in combat, therefore I am not eligible for CRSC. So, that is where I was stating that I'm not in it for the money.

Thanks. I haven't even had a chance to read your responses yet, except for the beginning of the first one that tipped me off to my mistake. I am in class right now and will follow up in a couple hours.

I really appreciate you answering!
gary
 

Warrior644

Staff Member
PEB Forum Lifetime Supporter
PEB Forum Veteran
Registered Member
Hi everyone,...
What do you guys think? My disability is not from combat, but from an abusive commander with whom I worked closely for two years, then another one in the Guard for five years. I don't know if that biases evaluators against me, since my condition is not combat-related.

Should I just get out in July and take the "Let's Make a Deal" VA Disability of 100%, or should I continue to stay in to fight for an MEB/PEB rating?

Am I really risking my 100% VA Disability Rating by doing so? I understand that the VA is keenly interested in my getting better, and, if I show improvement, they have all the right to re-evaluate me and reduce my rating based on that evaluation. But would a reduction in VA rating occur automatically as a result of an MEB/PEB evaluation? I actually think I have gotten worse in the past years since my last evaluation, anyway.

*Of note: I am 100% for PTSD. It is not improving. I see a psychologist and a psychiatrist at the VA, and my functional abilities are declining over the past 9 years.

Thanks, any answers are welcome!
SORRY YOU GUYS!

I made a mistake when I wrote my initial post.

YES my injury happened on active duty, and it was exacerbated in the Guard. What I meant to state was this:

My injury did not happen in combat, therefore I am not eligible for CRSC. So, that is where I was stating that I'm not in it for the money.

Thanks. I haven't even had a chance to read your responses yet, except for the beginning of the first one that tipped me off to my mistake. I am in class right now and will follow up in a couple hours.

I really appreciate you answering!
gary
In accordance with 38 CFR §3.343 Continuance of total disability ratings, it states...

(a) General. Total disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment, or individual unemployability will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen which precludes work, and, if the latter, reduction from total disability ratings will not be considered pending reexamination after a period of employment (3 to 6 months).

In accordance with 38 CFR §3.344 Stabilization of disability evaluations, it states...

(a) Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

(b) Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ___ months from this date, §3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

(c) Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

In my opinion, it seems that your medical condition(s) warrant a referral with acceptance into the DoD IDES MEB/PEB process at this point in time. Hence, please don't forget about invoking the necessary DoD IDES appeal opportunities if warranted while in the IDES process. Take care! :cool:

Thus, I quite often comment that "possessing well-informed knowledge is truly a powerful equalizer!"

Best Wishes!
 

Gary

Registered Member
To both of you, thanks very much!!! I will follow up and read the regs you cited here, and I'll also follow up and let you know how things go, here, when they get squared away.

gary
 

Warrior644

Staff Member
PEB Forum Lifetime Supporter
PEB Forum Veteran
Registered Member
To both of you, thanks very much!!! I will follow up and read the regs you cited here, and I'll also follow up and let you know how things go, here, when they get squared away.

gary
Indeed, you are quite welcome! :)

Look forward to reading the updates; take care! :cool:

Thus, I quite often comment that "possessing well-informed knowledge is truly a powerful equalizer!"

Best Wishes!
 

MajTAGR

Registered Member
To both of you, thanks very much!!! I will follow up and read the regs you cited here, and I'll also follow up and let you know how things go, here, when they get squared away.

gary
How did this work out for you Gary? I am in the exact same situation. They are playing "lets make a deal" a lets just discharge you because you are already at 100% VA rating, but like you I just found out there are significant benefits I could be letting go of.
 
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