FPEB Appeal situation

Ablev93

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So I have a weird situation. Long story short I had a TBI/Skull Fracture about a year and a half ago. No issues. Was prescribed Wellbutrin for smoking cessation. That along with the scarring on my brain intensely lowered my seizure threshold (Wellbutrin is notorious for this) and I had one major seizure back in September. Stopped taking the medicine and have been fine since. An off base neurologist put me on Keppra “long-term” to make it to where I wouldn’t have another seizure. The seizure triggered this process back in October and I have went through the whole process thinking I would get RTD. I don’t have epilepsy and never have. My commander and PCM both recommended return to duty which is what I ultimately want. I want to stay in and retire. About last week after the Informal board they rated me 20% LUMP SUM SEVERANCE PAY AND MEDICAL DISCHARGE. WTF. Not only is that 10% away from qualifying for “medical retirement benefits” but I don’t want to give up on the Air Force. I’m happy and want to continue this career. I chose to opt out of IDES in the beginning because I was sure that I would be returned to duty and didn’t need a VA rating at this point. My lawyer in this appeal process basically said I shot myself in the foot with that. I’m now in the appeal process working with the lawyers at the Office of Disability Counsel to get a result that I can hopefully return to duty. I’m not really sure what I’m asking here lol, I’m just stressed, tired and anxious to have to fight to keep my job and continue to serve when I hear people at my shop begging and using this process to GTFO and get an even higher rating. I would just appreciate some advice or words of encouragement through this rough time. I’m just tired..
 

Jason Perry

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Ablev93,

Welcome to the PEBFORUM! I am sorry to hear of your problems (both health and career-wise). This has to be a stressful situation. I will share with you my thoughts (based solely on what you shared and my educated guesses about them), though, I don't think they will be that comforting. You have a difficult situation.

So I have a weird situation. Long story short I had a TBI/Skull Fracture about a year and a half ago. No issues. Was prescribed Wellbutrin for smoking cessation. That along with the scarring on my brain intensely lowered my seizure threshold (Wellbutrin is notorious for this) and I had one major seizure back in September. Stopped taking the medicine and have been fine since.
So, if I am tracking you have had one total seizure, period. Please correct me if I am wrong on this. What I wonder about is the TBI/skull fracture. I wonder if there are any symptoms related to this injury. (As an aside, I wonder if the injury was potentially combat-related; this could make a big difference in your pay depending on the outcome).
An off base neurologist put me on Keppra “long-term” to make it to where I wouldn’t have another seizure. The seizure triggered this process back in October and I have went through the whole process thinking I would get RTD. I don’t have epilepsy and never have.
I am curious if it was the one seizure, the medication, or both combined that triggered the MEB and PEB. That question is somewhat academic as you have been sent to the PEB. (Also, not sure that you are right about "not having epilepsy"- or the import of that, because that is the way they are most likely to rate you on based on your described history. In this instance, the diagnosis may not be medically accurate, but the code for epilepsy is the most likely they will use to rate you, so the semantics may not matter much.
My commander and PCM both recommended return to duty which is what I ultimately want. I want to stay in and retire.
You might want to take a deep breath and hear what I am saying, though you may not want the likely outcome or what I will write here. I share my insight to try to help you, but your circumstances might not match up with your desires.

You did not share your years of service, your grade, or your AFSC. All of these are likely to matter in your ultimate outcome.

I remind everyone of one of my first posts when I created this forum. The gist of it was that the very first (or early) decision to make is what outcome you want to fight for based on the facts and circumstances of your case. This is a critical step, and if you decide poorly, you may end up with a poor outcome. I had a case years ago where a CMSgt with 19 years of service with severe migraines was intent on getting a return to duty. Every statement she made, every interaction with the board was with the goal of getting a fit finding. She argued strongly that while she had migraines, a profile restricting her from worldwide duty, needed medication to control the condition, that she was not very limited. Sure enough, she got a 20% rating from the FPEB, and then she came to me for advice. It was so disappointing and difficult because she had a clear and strong case for a full disability retirement based on an objective view of her case, minus her arguments and statements that she was not that disabled.

TBI, seizure, and long term medication that you described in your case seem to all indicate the high likelihood of an unfit finding. This is shown by your actual results from the IPEB. I think fighting for an unfit finding is going to be a very unlikely result from your case. So, you are left with the decision to try to keep on going on the path of a return to duty finding (with the likely outcome being the 20% finding you have), or change course.

About last week after the Informal board they rated me 20% LUMP SUM SEVERANCE PAY AND MEDICAL DISCHARGE. WTF. Not only is that 10% away from qualifying for “medical retirement benefits” but I don’t want to give up on the Air Force. I’m happy and want to continue this career.
I understand your desire to finish 20 years of service. I also suggest that your desires are not matching with the apparent and likely outcome and this mismatch may hurt you in the long run. I am sympathetic to your situation; also, I think you are setting yourself up for failure.
I chose to opt out of IDES in the beginning because I was sure that I would be returned to duty and didn’t need a VA rating at this point. My lawyer in this appeal process basically said I shot myself in the foot with that.
This is not directly to chide you for choosing LDES. This is more for everyone who reads this even if it does also apply to you. It is a very rare and unusual situation where optiing out of the IDES and choosing the LDES makes sense. I tend to agree with the fact that you may have hurt your chances of success by opting to use the LDES process- though, if you are "all in" on a return to duty, this should not really matter. The problem is that you are highly unlikely to get a return to duty finding.

As it stands, you may well be locked into the LDES (though, if I were to get creative, I might explore withdrawing your election for LDES....this is a complicated issue and I don't know you would have success with changing your election at this late step in the administrative process; that said, the regulations clearly state that IDES is the default and there are regulations that suggest that your processing with the LDES is not proper).
I’m now in the appeal process working with the lawyers at the Office of Disability Counsel to get a result that I can hopefully return to duty. I’m not really sure what I’m asking here lol, I’m just stressed, tired and anxious to have to fight to keep my job and continue to serve when I hear people at my shop begging and using this process to GTFO and get an even higher rating. I would just appreciate some advice or words of encouragement through this rough time. I’m just tired..
Based on what you have shared your likely outcome is an unfit finding. So, you can fight that fight, but, I think you are highly likely to lose and you will get a poor outcome based on your current approach to your case.

I cannot offer you words of encouragement for your desired outcome. I will offer my best wishes that all goes well for you. However, I would also suggest that you go back and consider your situation and see if you can't get a better outcome by dealing with your likely outcome based on your situation. What you want might not be in the offing, but, if you don't do an accurate assessment of your situation, you are likely to get the worst outcome based on your situation. Please think through your situation and consider your options. You can still change course and maximize your likely due benefits or compensation.

I hope my comments help you. Best of luck in your case!
 

chaplaincharlie

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The most important thing a member must do in the MEB/PEB process is to pursue that which has a realistic chance of occurring. Some cases can go either way, but many cases are predestined to either result in separation/retirement or RTD. In those cases with a predestine outcome, it is imperative to make that assessment and pursue that path. Hopefully your attorney has you gather info from doctors with a more realistic view of your situation.

If the outcome continues as you descibe above, I suggest you immediately appeal your VA rating.
 

Ablev93

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What do you guys suggest I do with this info for my best possible outcome? I have 5 years of service. My AFSC is 1W0X1.
 

Provis

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What do you guys suggest I do with this info for my best possible outcome? I have 5 years of service. My AFSC is 1W0X1.
You are fighting an uphill battle in LDES. I would try everything i could to see if I could change to IDES and argue that you were given wrong advice on it. For most people LDES is a very bad deal. IDES was created to help soldiers so that the VA is the one rating the conditions which makes the process more impartial. However, since you have only 5 years of active service your VA compensation would probably be higher than your medical retirement. So the main thing you lose by not getting a medical retirement is having Tricare.

So if i were in your shoes I would fight like hell for getting it changed to IDES and if that didn't work I would be appealing the 20% rating in LDES to try to get a higher rating so that i could get a medical retirement. Fighting to stay fit for duty is the least likely to overturn. Then if that doesn't work you need to focus on getting VA benefits with the proper ratings.
 

Jason Perry

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What do you guys suggest I do with this info for my best possible outcome? I have 5 years of service. My AFSC is 1W0X1.
1. Get an honest (self) assessment about your situation and your goals. I suspect that you may be open to a change in position. I think that is good.
2. Talk with your attorney.

You are fighting an uphill battle in LDES. I would try everything i could to see if I could change to IDES and argue that you were given wrong advice on it. For most people LDES is a very bad deal. IDES was created to help soldiers so that the VA is the one rating the conditions which makes the process more impartial. However, since you have only 5 years of active service your VA compensation would probably be higher than your medical retirement. So the main thing you lose by not getting a medical retirement is having Tricare.

So if i were in your shoes I would fight like hell for getting it changed to IDES and if that didn't work I would be appealing the 20% rating in LDES to try to get a higher rating so that i could get a medical retirement. Fighting to stay fit for duty is the least likely to overturn. Then if that doesn't work you need to focus on getting VA benefits with the proper ratings.
I don't know how many times I can say it. I can say it in different ways. I can say it many times. I can explain it. I can explain it once; I can explain it a hundred times and I can write it, I can explain it, I can cite the reasons, I can cite my experience. Still, people often opt for the LDES, when the IDES and the VA providing the ratings is almost always the best outcome.I guess, if folks want to go through LDES, that is their choice. I will say it again, (and this makes me think that I need to make a big post about this), LDES is the wrong choice in almost every situation.

(What kills me is when people know the issue, but, because their PEBLO told them to select LDES, they did so. I have a current case, I was on the phone with the PEBLO, my client was 100% Permanent and Total, and the PEBLO pushed for LDES, and the pitch was that that LDES would be "faster" and there was a risk that the VA would find less than a 100%. C'mon, man....really? My short response was no, we are electing IDES.)

Provis said it well, above. I don't know what else I can say to suggest that anyone should act differently.
 

Chalk22

PEB Forum Regular Member
Registered Member
1. Get an honest (self) assessment about your situation and your goals. I suspect that you may be open to a change in position. I think that is good.
2. Talk with your attorney.


I don't know how many times I can say it. I can say it in different ways. I can say it many times. I can explain it. I can explain it once; I can explain it a hundred times and I can write it, I can explain it, I can cite the reasons, I can cite my experience. Still, people often opt for the LDES, when the IDES and the VA providing the ratings is almost always the best outcome.I guess, if folks want to go through LDES, that is their choice. I will say it again, (and this makes me think that I need to make a big post about this), LDES is the wrong choice in almost every situation.

(What kills me is when people know the issue, but, because their PEBLO told them to select LDES, they did so. I have a current case, I was on the phone with the PEBLO, my client was 100% Permanent and Total, and the PEBLO pushed for LDES, and the pitch was that that LDES would be "faster" and there was a risk that the VA would find less than a 100%. C'mon, man....really? My short response was no, we are electing IDES.)

Provis said it well, above. I don't know what else I can say to suggest that anyone should act differently.

The only time I can think of LDES possibly being a good idea is if you are a Reservist who is already rated by the VA and receiving benefits. IDES could result in a reduced rating for the condition which is already being compensated. Of course, if the condition has improved the VA should eventually reevaluate, anyway.
 

Jason Perry

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The only time I can think of LDES possibly being a good idea is if you are a Reservist who is already rated by the VA and receiving benefits. IDES could result in a reduced rating for the condition which is already being compensated. Of course, if the condition has improved the VA should eventually reevaluate, anyway.
Here's the extra rub- the VA doesn't look to DES processing decisions as a basis to reduce ratings on the VA side. There are so many favorable limits on how and why the VA can reduce ratings (plus, procedural protections).

I laughed out loud last week when the PEBLO tried to pitch LDES when my client has a 100% P&T on the same conditions that are in play as unfitting. "Well, if you go IDES, you might get a reduction in your VA rating." Yeah, nice try.
 
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