Declining to file with an existing VA rating and a possible second disqualifying condition

[USARSpouse]

Met with the MSC today from VA. My wife currently is 90% with HLRs pending. Army Reserves, 4 years. Her referred condition is PTSD from MST, she is rated 50% for it. Should be 70%. The MSC said she could "Decline to File" on a 4138 Form, and they would use last years PTSD initial DBQ and exam.

Questions:
Will her other VA-rated conditions go to the MEB doctor?
Will her STRs for all conditions go to the MEB doctor?
Will her current VA treatment records go to the MEB doctor?

She has a TBI that wasn't referred, but it is service-connected, has STRs showing three visits in Iraq, and currently has VA treatment records and the VES neurosurgeon DBQ links her 50% headaches to the TBI. This TBI could be considered a second disqualifying condition if the MEB sees all of the data related to it:

AR40-501: 3-31.g. Migraine, tension, or cluster headaches. When manifested by incapacitating attacks that interfere with duty or social activities three or more days per month. All such Soldiers will be referred to a neurologist, who will ascertain the cause of the headaches. The neurologist will determine whether prophylactic therapy (up to 6 months) or referral to the DES is warranted. If the headaches are not adequately controlled at the end of the 6 months, the Soldier will be referred to the DES. If the neurologist feels the Soldier is unlikely to respond to therapy, the Soldier can be referred directly to the DES.

MEDICAL STANDARDS FOR MILITARY SERVICE: RETENTION 5.26 Neurologic Conditions
h. Traumatic brain injury associated with persistent sequelae including, but not limited to: (3) Severe headaches.

If she declines to file, and the MEB doesn't get anything but the PTSD DBQ, we're not going to do it. Thank you!

 

[Provis]

Met with the MSC today from VA. My wife currently is 90% with HLRs pending. Army Reserves, 4 years. Her referred condition is PTSD from MST, she is rated 50% for it. Should be 70%. The MSC said she could "Decline to File" on a 4138 Form, and they would use last years PTSD initial DBQ and exam.

Questions:
Will her other VA-rated conditions go to the MEB doctor?
Will her STRs for all conditions go to the MEB doctor?
Will her current VA treatment records go to the MEB doctor?

She has a TBI that wasn't referred, but it is service-connected, has STRs showing three visits in Iraq, and currently has VA treatment records and the VES neurosurgeon DBQ links her 50% headaches to the TBI. This TBI could be considered a second disqualifying condition if the MEB sees all of the data related to it:

AR40-501: 3-31.g. Migraine, tension, or cluster headaches. When manifested by incapacitating attacks that interfere with duty or social activities three or more days per month. All such Soldiers will be referred to a neurologist, who will ascertain the cause of the headaches. The neurologist will determine whether prophylactic therapy (up to 6 months) or referral to the DES is warranted. If the headaches are not adequately controlled at the end of the 6 months, the Soldier will be referred to the DES. If the neurologist feels the Soldier is unlikely to respond to therapy, the Soldier can be referred directly to the DES.

MEDICAL STANDARDS FOR MILITARY SERVICE: RETENTION 5.26 Neurologic Conditions
h. Traumatic brain injury associated with persistent sequelae including, but not limited to: (3) Severe headaches.

If she declines to file, and the MEB doesn't get anything but the PTSD DBQ, we're not going to do it. Thank you!

Your MSC is dumb and lazy. Sounds like they are steering you towards LDES or IDES but not listing everything. If she should be 70% you will be rerated if you choose IDES. Also, in IDES you can challenge the VA if they get it wrong on the unfitting conditions. So if PTSD is found unfitting and the VA in IDES rates her at 50% its super easy to submit a VARR to have a higher level of review.

Choose IDES and get rated again. The only reason to choose LDES is if you are worried that your condition was rated higher than it should be and so you want to protect that rating and not have it looked at anymore. List every condition and choose IDES. Now I can say there are risks with that meaning that if they look at her again they could rate her 30% but understand that's a very small risk. People who have mental health conditions that don't allow them to work that is an unfitting condition are typically going to have a 50% or higher rating.

Consider hiring a private attorney. There is so much misinformation in this process and each person in it only knows their part. The worst part is that they don't know how their part affects the whole. Meaning advice from MSC sounds good until you find out you are royally screwed and stuck with a poor result for life. I have seen PEBLO's cost Soldiers immediate retirements by mentioning an option that should never have been mentioned such as filling out a packet to waive results just to hit 20 good years. The PEBLO didn't understand that by doing so the Soldier was waiving the results of an immediate pension just to hit 20 good years. That meant the Soldier had to wait 13 years to get paid. There are a lot of sob stories on here and the worst of them are the ones who were ignorant and trusted the system.

 

[USARSpouse]

I thought it was odd. I am setting up initial sessions with some private attorneys this week, but we have to submit the MSC paperwork with claims by Friday...

In a perfect world, we could claim all of her rated conditions, they could use the old exams (less than a year) for everything, do a repeat PTSD exam since it's referred.

That way, her MEB doctor would see everything when compiling her NARSUM, include all of her conditions, and possibly add the TBI with Migraines as a second disqualifying.

Am I crazy to think this is possible, or the way it should go...?

 

[Provis]

I thought it was odd. I am setting up initial sessions with some private attorneys this week, but we have to submit the MSC paperwork with claims by Friday...

In a perfect world, we could claim all of her rated conditions, they could use the old exams (less than a year) for everything, do a repeat PTSD exam since it's referred.

That way, her MEB doctor would see everything when compiling her NARSUM, include all of her conditions, and possibly add the TBI with Migraines as a second disqualifying.

Am I crazy to think this is possible, or the way it should go...?

Actually that is the way it goes. Unless there are documents showing improvement you should get the same ratings or higher. Your MSC has ran into so many Soldiers worried about losing something that they get used to it. Even if you have time scheduled you could reach out to those attorneys and ask them this question since you have a deadline. I would rather redo all the exams. They will use all of the past medical evidence anyway. I am not saying there isn't risk but there is risk to everything in life. Everyone that has chosen to get rerated on here has come back and had a good experience. However, you could be the first one that didn't. But even if you did you still can challenge the results and request a VARR at the end or if not an unfitting condition you can appeal that VA rating after you get out.

If you exclude things for claims then they won't even be listed on the NARSUM and wont' be considered because they are not claimed. This is why I caution everyone on here about trusting their MSC or PEBLO. They are not supposed to give you advice but the inadvertently do. They have no f'ing clue how their part in this affects the overall results. I would list everything and get rerated. Then work on making sure all of your medical records were good. Your wife still has to do a good job communicating her symptoms at the C&P exams. She can look up symptoms for each rating and make sure she mentions all the ones applicable to her situation and voice them during the C&P. If she should be 70% and she communicates her issues properly for example there is a good chance she will get that rating this time around. It would be really good to talk with an attorney first even if its JAG before deciding but if I had no way to do that I would rather put my future in my hands than be fearful and omit things just so that there isn't a chance of my VA ratings being changed. VA ratings aren't scary. You can get them changed anytime down the line. This process in iDES will cement your financial future forever. You may want to try to add additional unfitting conditions so that PDRL can be on some of them. If all your conditions are TDRL you have to toe the line for another year or so to ensure you keep getting treatment and try to not make any life changes until you are PDRL.

Also, if you havne't been told this already I have some wisdom to impart. If you know that she has additional conditions that should be unfitting but aren't referred. Make sure her commander's impact statement lists those conditions and how they affect her ability to do her job, deploy etc. The NARSUM docs will read that and can change a condition to unfit on the NARSUM based on medical evidence and that statement. Even if its not added at the NARSUM stage it will show the FPEB you have been asserting that a condition should be unfitting from the beginning.

 

[USARSpouse]

You are very much appreciated. I was starting to question my sanity. Have been reading nonstop, and the MSC suggestion didn't make sense.

Got a meeting scheduled for tomorrow with a private and a JAG on Thursday.

She will likely file and include all VA service-connected conditions so they are visible and listed on the NARSUM. Request using the old exams (under a year), per X.i.6.F.2.c. Use of Prior Examination Reports in Lieu of an IDES Examination, but reexamining if they want. We are not afraid of her rating dropping. All the evidence is there, it's recent, and she is continuing medical treatment and mental health with VA monthly. The documentation is unmistakably clear.