EPTS LOD question

buckstr

PEB Forum Veteran
I just received my LOD determinations that I submitted packages for over a year ago. They both came back as EPTS. These packages were put in after I had already been on orders for over 2 years and I also have over 8 years of active duty. One is for a ventral hernia and the other for Degenerative Disc Disease. I have already been to my C&P exams and they were put down as service connected conditions.
My question is- Should I bother to submit a rebuttal to the LOD determinations seeing how the VA has already determined them ILOD?
 

maparker

Staff Member
PEB Forum Veteran
Registered Member
Are you currently on active duty? Are you undergoing a MEB/PEB?

Mike
 

buckstr

PEB Forum Veteran
Yes to both. I am a reservists and have been on orders since July 2010 going thru the IDES. I have received my preliminary findings and am currently going thru the formal board.
 

buckstr

PEB Forum Veteran
It seems that quite a few of my LOD's have come back as EPTS. I was in a car accident and put in an LOD for cervical strain, whiplash, right after returning to work and I had been on orders for over a year and it came back as EPTS. When I tried to send in the regs to rebutt it they were just thrown out and I was told that the LOD board already know the regs and unless I had more medical info the rebuttal would not go thru.
 

maparker

Staff Member
PEB Forum Veteran
Registered Member
See the EPTS standard in the 14 October 2008 DTM (attached) . Hold your MEB and PEB to this standard. If these conditions were not noted on your entrance physical for you latest active duty stint, demand the clear and unmistakable evidence that these conditions preexisted service and were not aggravated by service.

Did the accident happen while you were on active duty? Regardless, if you are currently on active duty and you have 8 total years of active duty, the conditions should be compensable under the DES (MEB/PEB) under 10 USC 1207a.

Mike

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.

E3.P4.5.2.2.2. 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.
 

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buckstr

PEB Forum Veteran
The VA has given a service connected rating for the cervical condition at 10% and the hernia a 0% rating and this is in my IDES package I received from the PEB. It is just the LODs that were started over a year ago that say EPTS. The 10%for the DJD to me seems to cover the cervical strain as it would have been considered an agravation factor for the DJD. I just want to make sure that this doesn't come back and bite me later.
The VA proposed rating reads as followed:

(Continued)We are proposing that the following claimed disabiities are related to your military service,ie.,service connected·
DEGENERATIVE JOINT DISEASE C5-6(CLAIMED AS CERVICAL COMPRESSION,CERVICAL LIMITED RANGE OF MOTION,AND CERVICAL RADICULOPATHY)=10%

EPIGASTRIC VENTRAL HERNIA=0%
Should I bother to submit a rebuttal to the LOD determinations seeing how the VA has already determined them ILOD?
or
Should I submit a rebuttal with the VA letter stating that the conditions are service related?
 
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