I need a lawyer for ABCMR Or a PEB

medicalmystery

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I'm seeking the PDRL and compensation for what I believe is an error and injustice in my processing. Below is an explanation of my case. I'm angry about the entire thing and I'm no longer willing to deal with it. I would rather pay someone to.

http://forums.military.com/eve/forums/a/tpc/f/331196512/m/2300042292001?r=7770092292001#7770092292001
I left a response for your question on the military.com forum, as well. Make sure you contact Jason or MaParker on here, they will definitely guide you in the right direction. I think you have a great chance of winning an appeal!!!! It was their burden of proof to prove that the EPTS was without service aggravation.
 

Jason Perry

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I also responded over at the mil.com forum. I wouldn't normally do that, but I was concerned with the moderators statement that you must have 8 years to be retired. I felt that because so many might read that, I had to respond there to make sure people realize there is no such requirement.

Feel free to contact me, if you like.
 

ryan williams

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I wanted to thank you guys very much for the information. You have put my mind at ease, i submited my BCMR application on the 29th of may and I'm still waiting on the letter. I keep calling but they don't pick up anymore. I hope they received it, I had to withdraw a 293 I had in because I noticed they can't help me. And neither can the APDRB because this wasn't a disability discharge. Really annoying. But again thank you, I'm looking for a lawyer to take over my BCMR for me and get a claim going agasint the government for damages done for wrongful discharged, I was separated in bad shape and under the impression I would be able to use the VA and now I have to wait. This is a progressive condition and im suffering, no treatment no cure, I leave in some real pain. Lost my life prior to the mil not just my mil career and I have nothing. I'm pretty upset with the TMC and my PA, he knew what he was doing when he did. Still looking for a lawyer if I have any takers. I asked one person first, if he declines then I'm open l..
 

pittpan2005

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I also responded over at the mil.com forum. I wouldn't normally do that, but I was concerned with the moderators statement that you must have 8 years to be retired. I felt that because so many might read that, I had to respond there to make sure people realize there is no such requirement.

Feel free to contact me, if you like.
Jason.
I saw the post at military.com and thank you for responding.
 

Ed Mercanti

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Did you injure your back on active duty? Did you have a tumor in your spinal cord? If not, accepted medical principle would classify your condition as a birth defect (specifically, "chiari malformation"). That would be EPTS.
 

Ed Mercanti

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There is a presumption of fitness when someone enlists or is commissioned (accepted in the military). That can only be overcome by certain things, hereditary conditions being one. What presumption of service aggravation are you referring to Jason?
 

Jason Perry

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There are two presumptions- first that a condition did not exist prior to service and if that is overcome, there is a further presumption that the condition is service aggravated.

Here is a quote from the DoD Policy Memo Implementing Disability Related Provisions of 2008 NDAA (these direct amendments to DoDI 1332.38):

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.
 

Ed Mercanti

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The BCMR starts its consideration of a case with the presumption that what the military did was correct. This amendment to DoDI 1332.38 would leave the door open to an appeal based on evidence that would show the condition worsened far more rapidly than would normally be expected. But the medical documents which were used as a basis for the appeal would be reviewed either by the ARBA Medical Advisor or OTSG. So the evidence would have to be somewhat compeling. Even if an applicant was successful in an appeal, AR 635-40 requires that the EPTS portion of the condition be deducted from the rating. So the liklihood of a retirement would be somewhat minimal.
 

ryan williams

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I don't have chiari malformation I was just checked for it. There is no way to tell when or what caused this condition. It's very misunderstood. There is no concrete EPTS portion. And on my radiology report from the army it states that aggravation to my neruoforminal narrowing canel stenosis is causing my syringomyelia?
 

Jason Perry

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I don't doubt that that is what they would say. But, I believe that approach and a denial based on it would not be correct. Ideally, if I were appealing to the BCMR, I would provide what I think they want- i.e., as you suggest, evidence showing that the military made the condition worse more rapidly than natural progression.

However, if that evidence was not available or - even if it was- I would argue in the alternative that the presumptions were neither applied nor overcome. The burden of production (who has to produce the evidence)-though this one is complicated in practice- and the burden of persuasion (who has to meet the standards) are on the military. In the absence of evidence (citing to generally accepted medical principles), then the presumptions are not overcome. And if they did not apply the presumptions in the first place, this is legal error.

As to the "subtraction" of what was EPTS vice what was service aggravated, I would say that if you start out that on entrance the person was able to perform all of the activities required of him, but over the weeks or months that he was unable, then all of that disability is "service aggravated" and compensable.

Again, I don't doubt that the BCMR may well take the position that because "it happened, it must be right." But, I think anything that does not address how, by citation to generally accepted medical principles" that the presumptions are overcome, would be error. Now, if they get it wrong, the forum where this is addressed is in court. So, it may be a long haul to get what is due (assuming a win).

Another important factor is whether the applicant is applying just for correction of records to show he was retired or if he claims wrongful discharge based on failure to process him through the DES. Generally, I think it makes sense to claim both.

I
 

ryan williams

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I don't know how this works but I was going to wait for favorable results from the BCMR and then go for the wrongful discharge? Also the cyst that was found was not large and consistent with long term growth.
 

Jason Perry

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I don't see any reason to wait to address wrongful discharge. Did you have a reason why?
 

ryan williams

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I don't see any reason to wait to address wrongful discharge. Did you have a reason why?
I really don't have a reason, I figured it would be more evidence. What I'm counting on is that the source that started and signed off on my EPTS also stated "aggravated by physical demands of training" on my 4707 which is an error and a contradiction. I would think that alone would force The BCMR to probe into my case. Also my PA referred me for a medical discharged and later changed it for reasons unknown and that is in my official records. Is this enough for the BCMR to look into this?
 

Jason Perry

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Is this enough for the BCMR to look into this?
It is enough for them to consider the arguments. Whether they grant relief or not is a separate question, which I could see going either way. Understand, this is a different statement than whether they should grant relief; based on what you have written, it seems they should. But, they might get it wrong.
 

ryan williams

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It is enough for them to consider the arguments. Whether they grant relief or not is a separate question, which I could see going either way. Understand, this is a different statement than whether they should grant relief; based on what you have written, it seems they should. But, they might get it wrong.
I decided I want to hire a laywer and if you are confident you can win I will contact you. I just got the letter they recieved my dd149. I didnt request an appearence. is it too late to take on a representation?
 

Jason Perry

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Feel free to contact me via private message or at [email protected]. I try to keep this site away from commercial issues.

That said, I am answering the below questions for the benefit of anyone in similar circumstances.

It is rare that anyone can say "you will win." This is because the different actors often make mistakes. I don't ever tell anyone that they "will win." All I can do is say what I think are the strong or correct arguments in your favor and whether I think you should win. Also, part of the decision on whether to pursue a case depends on how far the person is willing to fight. The analysis can change if the person only wants to fight to a certain level (PEB, BCMR, Federal Court, etc.). I am suspicious of anyone who says that unequivocally you will win, except for in exceptional situations.

The scope of the representation and what services you would want would determine whether it is "too late." If you are happy with what you have already submitted, then it may make sense to wait until the BCMR comes back with a decision (or advisory opinion). The only caveat that people should remember is that if you do not raise an issue before the BCMR, then you cannot raise for the first time in court. So, for that reason, it is important that the application covers everything that might be raised later.
 
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