EPTS Findings???

cards18

PEB Forum Regular Member
PEB Forum Veteran
Welp, got my findings back today.

Lets start at the beginning. In July 2007 I had surgery to remove a couple masses from my foot, diagnosed plantar fibromatosis. This was not noted or described as a hereditary or recurring condition at this time.

I DEP'ed in May 2009, and didn't hide this at all. I was examined, and noted to have 3 well healed scars, no recurrence.

In March/April 2011 I had a mass develop in my hand (dupuytrens, which is considered connected to my foot)

In July, the mass returned in my foot as well.

So essentially I was found unfit, determined that it existed prior to service, to be separated without benefits.


1. Now, there is a presumption of soundness at the time of MEPS, (and there were no masses) so isn't the burden of proof on the DOD to show that miiltary service did NOT aggravate my condition?


2. I am thinking of requesting a reconsideration based on this tomorrow. Do these typically go faster than the regular claims? Anyone have further tips/info on this process?
 

cards18

PEB Forum Regular Member
PEB Forum Veteran
3. Is taking the discharge and trying to go with a PDBR board an option, without fighting it first in service?
 

pittpan2005

PEB Forum Regular Member
PEB Forum Veteran
3. Is taking the discharge and trying to go with a PDBR board an option, without fighting it first in service?
Don't pass up appeals. Take it one step at a time. Contact legal counsel and get some advice before making a rash decision that might be wrong.
 

cards18

PEB Forum Regular Member
PEB Forum Veteran
I was told I can't appeal claiming service aggravation without 8 years in service...
 

cards18

PEB Forum Regular Member
PEB Forum Veteran
I understand hereditary conditions are EPTS now, but the aggravation of condition through service can't be appealed without 8 years of active service? Anyone know?
 

pittpan2005

PEB Forum Regular Member
PEB Forum Veteran
E2.1.32. Service Aggravation. The permanent worsening of a pre-Service medical condition over and above the natural progression of the condition caused by trauma or the nature of Military Service.

E3.P1.3.4.1.3.1. For all cases with a finding of pre-existing condition without aggravation, the specific accepted medical principle for overcoming the presumption of Service aggravation shall be cited and explained.

E3.P2.5. Members with a Nonwaivered Pre-Existing Condition.
Service members who are identified with nonwaivered medical conditions or physical defects that existed prior to service may be administratively separated without referral into the DES when the medical condition meets all the criteria listed in subsections E3.P2.5.1. through E3.P2.5.4., below:
E3.P2.5.1. The medical impairment is identified prior to or within 180 days of the member's initial entry on active duty or active duty for training or full-time National Guard duty.
E3.P2.5.2. The medical impairment does not meet accession standards under DoD Directive 6130.3 (reference (e)).
DoDI 1332.38, November 14, 1996
23ENCLOSURE 3 PART 2E3.P2.5.3. The impairment is not a condition that is cause for referral to the PEB under enclosure 4 or Service supplemental medical standards.
E3.P2.5.4. Service aggravation of the impairment has not occurred.If the Service member contests the “not Service aggravated” determination by the physician recommending separation, the member may request the MEB be forwarded to the PEB for review.

E3.P2.6. Members with Medical Waivers.
Provided no aggravation has occurred, Service members who enter the military with a medical waiver may be separated without physical disability evaluation when the responsible medical authority designated by Service regulations determines within 180 days of the member's entry into active service that the waivered condition represents a risk to the member or prejudices the best interests of the Government. Once 180 days have elapsed or the condition is one which causes referral into the DES, the member shall be referred for physical disability evaluation, if otherwise qualified.

E3.P4.5.2.1. At Time of Entry. A Service member is presumed to have been in sound physical and mental condition upon entering active duty except for medical defects and physical disabilities noted and recorded at the time of entrance.
E3.P4.5.2.2. After Entry
E3.P4.5.2.2.1. Presumption. Any injury or disease discovered after a Service member enters active duty -- with the exception of congenital and hereditary conditions -- is presumed to have been incurred in the line of duty;
E3.P4.5.2.2.2. Hereditary and/or Genetic Diseases. Any hereditary and/or genetic disease shall be presumed to have been incurred prior to entry into active duty. However, any
DoDI 1332.38, November 14, 1996
32ENCLOSURE 3 PART 4aggravation of that disease, incurred in the line of duty, beyond that determined to be due to natural progression shall be deemed service aggravated.
E3.P4.5.2.3. Presumption of Aggravation. The presumption that a disease is incurred or aggravated in the line of duty may only be overcome by competent medical evidence establishing by a preponderance of evidence that the disease was clearly neither incurred nor aggravated while serving on active duty or authorized training. Such medical evidence must be based upon well-established medical principles, as distinguished from personal medical opinion alone. Preponderance of evidence is defined as that degree of proof necessary to fully satisfy the board members that there is greater than a 50% probability that the disease was neither incurred during nor aggravated by military service.

E3.P4.5.5. Medical waivers. Members who entered the Service with a medical waiver for a pre-existing condition and who are subsequently determined unfit for the condition shall not be entitled to disability separation or retired pay unless Military Service permanently aggravated the condition or hastened the condition's rate of natural progression. Members granted medical waivers shall be advised of this provision at the time the waiver is granted.
E3.P4.5.6. Treatment of Pre-Existing Conditions. Generally recognized risks associated with treating preexisting conditions shall not be considered service aggravation.
 

pittpan2005

PEB Forum Regular Member
PEB Forum Veteran
I understand hereditary conditions are EPTS now, but the aggravation of condition through service can't be appealed without 8 years of active service? Anyone know?
If you had 8 plus years in, EPTS wouldn't be an issue. Since you have less the military has to prove it's more likely than not (51%), not a result of or been aggravated by military service.
 

cards18

PEB Forum Regular Member
PEB Forum Veteran
branch is the Marines...

I think I have a good case, no evidence was cited that military service did not aggravate the condition. They definately didn't overcome the presumption of aggravation, they didn't use any evidence whatsoever. Throughout ALL of my doctor notes, and all my reports, there isn't one sentence that suggests that it was just the natural progression of the disease.

Symptoms were absent at MEPS, and the condition was documented to be healed (from 2007 surgery) and the recurrence happened after a few years of service.


If I elect a formal board and a reconsideration, it said they are run concurrently (The VA did not rate the condition, as the IPEB sent them the condition as unfitting but EPTS and non-aggravated) will the VA then rate the condition pending the resolution of the formal board? or will I have to go through the board, then get a rating?

Honestly, if i'm getting out, I'd like to go to school in August...
 

pittpan2005

PEB Forum Regular Member
PEB Forum Veteran
OK,
SECNAVINST 1850.4E is what you need to reference and dissect. It's detailed info about Navy/Marine PEB. Did you consult with legal counsel yet? Have you looked up your medical conditions in VASRD?
 

maparker

Moderator
PEB Forum Veteran
Registered Member
Hold the phone.

The military EPTS/aggravation standards changed in 2009 and are covered in the 14 OCT 2008 DoD DTM. In essence the PEB must provide clear and unmistakable evidence that the condition preexisted service, and if it preexisted service, they must provide clear and unmistakable evidence the conditon was not aggravated by service. I just fought an EPTS case for a sailor and the PEB had to redo the case with instructions to provide the clear and unmistakable evidence to back up a EPTS determination. They could not and his condition was deemed service connected. Send me a PM and I can send you the letter by the PEB president that instructed the IPEB they had to provide the clear and unmistable evidence. Sounds like you IPEB needs similar instruction if you did not receive the clear and unmistakable evidence to overcome the presumption of service connection and aggravation.

The eight year rule (law 10 USC 1207a) provides that if you are on active duty and have at least eight years of active duty, EPTS conditons are coverd as if they are service connected. You do not need eight years to appeal an EPTS determination.

Below is the relevant section of the 14 Oct 2008 DoD DTM:

E3.P4.5.2. Presumption for Members on Active Duty for More than 30 days. The presumptions listed in E3.P4.5.2.1., through E3.P4.5.2.3., below apply to members on orders to
active duty of more than 30 days, for purposes of determining whether an impairment was incurred or aggravated while a member was entitled to basic pay.

E3.P4.5.2.2. After Entry

E3.P4.5.2.2.1.
Presumption of Sound Condition for members ordered on active duty for more than thirty days. This presumption applies in all cases in which a member,
on active duty for more than 30 days is found to have a disability and the disability was not noted at the time of the member’s entrance on active duty. This presumption is overcome if clear and unmistakable evidence demonstrates that the disability existed before the Service member’s entrance on active duty and was not aggravated by military service. Absent such clear and unmistakable evidence, the PEB will conclude that the disability was incurred or aggravated during military service.
Hereditary and/or Genetic Diseases. Any hereditary or genetic disease shall be evaluated to determine whether clear and unmistakable evidence
demonstrates that the disability existed before the Service member’s entrance on active duty and was not aggravated by military service. However, even if the conclusion is that the disability was incurred prior to entry on active duty, any aggravation of that disease, incurred while the member is entitled to basic pay, beyond that determined to be due to natural progression shall be determined to be service aggravated. To overcome the presumption of sound condition, factual evidence based upon well-established medical principles as distinguished from personal medical opinion alone must be presented to rebut the presumption. The quality of evidence is usually more important than quantity. All relevant evidence must be weighed in relation to all known facts and circumstances relating to the condition. Findings will be made on the basis of objective evidence in the record as distinguished from personal opinion, speculation, or conjecture. When the evidence is not clear concerning whether the condition existed prior to service or if the evidence is equivocal, the presumption will not be deemed to have been rebutted and the member's condition will be found to have been incurred in or aggravated by military service.
 

Ed2w1

PEB Forum Regular Member
Registered Member
I know this thread is old but Of you got discharged in 2007 medical EPTS are you able to use the 2008 NDAA for appealing to the BCMR on the new criteria listed in the 08 NDAA?
 
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