Army reservist found fit by PEB for 2nd time

benobrien

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I had a stroke in Afghanistan, lost my speech, had 4 carotid artery stents placed and learned to speak again and was then returned by the Army to full duty. Then 3 years later had another stroke when I kinked on of my stents doing physical activity (that I never should have been doing because I never should have been returned to full duty). After the second stroke I was placed on a ridiculous profile and referred to the MEB. I work as a civilian in my same MOS and have continued to work as a civilian. So for that reason the PEB found me fit and returned me to duty, with a permanent profile restricting all physical activity (I cant even stand in formation for more than 5 mins). So with the new PT test coming up my commander identified me as not being able to complete it and I was referred again to the MEB process. I just got my 199 with the PEB findings for the second time, and was again found fit. Again they noted that I work as a civilian in my MOS and so should be able to do it in the reserves on the current permanent profile with the current restrictions.

Between the first and second MEB referral I did begin receiving treatment from the VA for not only the stroke related issues but also for depression. The depression seems to be worsened by being at drill and almost every battle assembly having to explain to someone why I cant participate in the soldiering activities. Not only am I reminded of what I cant do, which I used to enjoy, I feel like crap for not participating but still having to be present for all battle assembly activities. I swear I feel like I am scamming and that everyone around me thinks "what the hell is this guy even doing in the reserves?!"

I have a VA rating of 100%, so not only can I not participate at drill, I dont want to because then I end up having to pay the VA back for receiving disability pay and reserve pay at the same time.

I figure this time I will go through the formal appeal process with the PEB. I have nothing to lose.

Is anyone aware of any examples of soldiers that were found fit and the appealed the PEB findings and then as a result of their appeal where changed to unfit? Or is this a waist of time and energy?

Thank you.
 

chaplaincharlie

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If you do not have counsel, I recommend you consider getting counsel ASAP.
 

Chalk22

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You should check out the USARC video on YouTube about VA disability. You can particirate in the Reserve and only waive the number of days you performed duty. In a month you attend drill you must waive 4 days of VA disability. If you VA payment is $3106, you would waive $414 but retain your military pay for the weekend.
 

NJOnguard

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I had a stroke in Afghanistan, lost my speech, had 4 carotid artery stents placed and learned to speak again and was then returned by the Army to full duty. Then 3 years later had another stroke when I kinked on of my stents doing physical activity (that I never should have been doing because I never should have been returned to full duty). After the second stroke I was placed on a ridiculous profile and referred to the MEB. I work as a civilian in my same MOS and have continued to work as a civilian. So for that reason the PEB found me fit and returned me to duty, with a permanent profile restricting all physical activity (I cant even stand in formation for more than 5 mins). So with the new PT test coming up my commander identified me as not being able to complete it and I was referred again to the MEB process. I just got my 199 with the PEB findings for the second time, and was again found fit. Again they noted that I work as a civilian in my MOS and so should be able to do it in the reserves on the current permanent profile with the current restrictions.

Between the first and second MEB referral I did begin receiving treatment from the VA for not only the stroke related issues but also for depression. The depression seems to be worsened by being at drill and almost every battle assembly having to explain to someone why I cant participate in the soldiering activities. Not only am I reminded of what I cant do, which I used to enjoy, I feel like crap for not participating but still having to be present for all battle assembly activities. I swear I feel like I am scamming and that everyone around me thinks "what the hell is this guy even doing in the reserves?!"

I have a VA rating of 100%, so not only can I not participate at drill, I dont want to because then I end up having to pay the VA back for receiving disability pay and reserve pay at the same time.

I figure this time I will go through the formal appeal process with the PEB. I have nothing to lose.

Is anyone aware of any examples of soldiers that were found fit and the appealed the PEB findings and then as a result of their appeal where changed to unfit? Or is this a waist of time and energy?

Thank you.
At 100% VA you really should have waived your drill pay and due to your medical condition you may consider getting out all together, depending on how much time you have in already. I think you need a Sr. NCO to mentor you, it's shocking about the MEB/PEB findings
 

Chalk22

PEB Forum Regular Member
Registered Member
At 100% VA you really should have waived your drill pay and due to your medical condition you may consider getting out all together, depending on how much time you have in already. I think you need a Sr. NCO to mentor you, it's shocking about the MEB/PEB findings
No! That is incorrect. First, you cannot waive military pay. Second, even if you could the 4 days of military pay is almost always higher than the 4 days of VA disability you must waive - sometimes substantially. You waive day for day, not month for month. 100% disability is around $106 per day while an E5 with over 8 years of service is $110 per day. So, unless you are a junior enlisted Soldier you should waive the VA disability. I have seen officers who followed NJOguards advice and lost tens of thousands of dollars in pay.
 

NJOnguard

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No! That is incorrect. First, you cannot waive military pay. Second, even if you could the 4 days of military pay is almost always higher than the 4 days of VA disability you must waive - sometimes substantially. You waive day for day, not month for month. 100% disability is around $106 per day while an E5 with over 8 years of service is $110 per day. So, unless you are a junior enlisted Soldier you should waive the VA disability. I have seen officers who followed NJOguards advice and lost tens of thousands of dollars in pay.
Actually, you have the option to waive your drill pay for VA compensation, I personally know an E-5 that's been doing it for years, drilling for retirement points only. Officers ?? lost money because of me, seriously mmmmmm https://www.benefits.va.gov/WARMS/docs/admin21/m21_1/mr/part3/subptv/ch04/M21-1MRIII_v_4_secC.doc waive drill pay for your 100% VA It's simple math

b. Prohibition Against Concurrent Receipt of Drill Pay and VA Benefits​

10 U.S.C. 12316 and 38 U.S.C. 5304(c) prohibit the concurrent receipt of drill pay and Department of Veterans Affairs (VA) disability compensation or pension.

Veterans who perform active or inactive duty training must choose the benefit they prefer and waive the other.
Most Veterans choose to receive drill pay instead of disability compensation or pension because drill pay is typically the greater benefit. These Veterans must waive their VA benefits for the same number of days they received drill pay.
Concurrent receipt of VA benefits and the subsistence allowance that a Veteran in the Senior Reserve Officers’ Training Corps (SROTC) might receive is not prohibited. Only concurrent receipt of VA benefits and pay the Veteran receives for active or inactive duty training in the SROTC is prohibited.

Exception: According to VAOPGCPREC 10-90, a reservist or member of the National Guard may concurrently receive VA benefits and the “temporary disability compensation” described in 37 U.S.C. 204(g), (h) and (i).

References: For more information about the prohibition against concurrent receipt of active service pay and VA compensation or pension, see
38 CFR 3.654, and
38 CFR 3.700(a)(1).


f. Use of VA Form 21-8951-2​

VA typically learns a Veteran has received drill pay through the data match described in M21-1, Part III, Subpart v, 4.C.1.c. However, a Veteran may, on his/her own initiative, notify VA of his/her receipt (or anticipated receipt) of drill pay, and whether he/she chooses to waive VA benefits or drill pay, by completing and submitting VA Form 21-8951-2, Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances.

Note: VA Form 21-8951-2 is essentially a blank version of the Hines ITC-generated VA Form 21-8951.

Important: Although VA does not require a Veteran’s unit commander to sign VA Form 21-8951 unless the Veteran asserts the actual number of training days is less than the number the Hines ITC printed on the form, VA always requires a Veteran’s unit commander to sign VA Form 21-8951-2.
 

Chalk22

PEB Forum Regular Member
Registered Member
Actually, you have the option to waive your drill pay for VA compensation, I personally know an E-5 that's been doing it for years, drilling for retirement points only. Officers ?? lost money because of me, seriously mmmmmm https://www.benefits.va.gov/WARMS/docs/admin21/m21_1/mr/part3/subptv/ch04/M21-1MRIII_v_4_secC.doc waive drill pay for your 100% VA It's simple math

b. Prohibition Against Concurrent Receipt of Drill Pay and VA Benefits​

10 U.S.C. 12316 and 38 U.S.C. 5304(c) prohibit the concurrent receipt of drill pay and Department of Veterans Affairs (VA) disability compensation or pension.

Veterans who perform active or inactive duty training must choose the benefit they prefer and waive the other.
Most Veterans choose to receive drill pay instead of disability compensation or pension because drill pay is typically the greater benefit. These Veterans must waive their VA benefits for the same number of days they received drill pay.
Concurrent receipt of VA benefits and the subsistence allowance that a Veteran in the Senior Reserve Officers’ Training Corps (SROTC) might receive is not prohibited. Only concurrent receipt of VA benefits and pay the Veteran receives for active or inactive duty training in the SROTC is prohibited.

Exception: According to VAOPGCPREC 10-90, a reservist or member of the National Guard may concurrently receive VA benefits and the “temporary disability compensation” described in 37 U.S.C. 204(g), (h) and (i).

References: For more information about the prohibition against concurrent receipt of active service pay and VA compensation or pension, see
38 CFR 3.654, and
38 CFR 3.700(a)(1).


f. Use of VA Form 21-8951-2​

VA typically learns a Veteran has received drill pay through the data match described in M21-1, Part III, Subpart v, 4.C.1.c. However, a Veteran may, on his/her own initiative, notify VA of his/her receipt (or anticipated receipt) of drill pay, and whether he/she chooses to waive VA benefits or drill pay, by completing and submitting VA Form 21-8951-2, Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances.

Note: VA Form 21-8951-2 is essentially a blank version of the Hines ITC-generated VA Form 21-8951.

Important: Although VA does not require a Veteran’s unit commander to sign VA Form 21-8951 unless the Veteran asserts the actual number of training days is less than the number the Hines ITC printed on the form, VA always requires a Veteran’s unit commander to sign VA Form 21-8951-2.
The regulation prohibiting concurrent receipt does not authorize waiver of military pay by the services. In fact, what you mentioned is pay avoidance, not a waiver of military pay. Soldiers should be paid by the unit and then report it to the VA. If, under those rare circumstances, the drill pay is less than the disability pay the Soldier submits the VA form waiving the military pay. That means the VA reduces the disability by the equivalent of the military pay (instead of the disability pay). As I said, any Soldier E-5 and above is likely to make more in military pay than disability, not just officers. So, your friend is probably loosing money... seriously.
 
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