I was referred for NoN-duty PEB

M

mos63b

PEB Forum Regular Member
Registered Member
Hello All, this seems very challenging to me. I was wondering if anyone has experienced something similar to my issue. Here goes.

I am currently a army reservist that just went into IRR at this moment, I have 18 good years of service. During my deployment in Afghanistan 2010-2011, I slipped and fell and injured my back and neck. I went to sick call and was give Motrin. They never did an LOD for me and I just dealt with pain. Throughout the years, I started experiencing more back neck pain for many years finally went to VA and got a rating. Over time I began getting migraines and chronic neck pain. Long story short, I am now being told I am going to NON- Duty PEB. For migraines and chronic neck pain.. I was just found unfit to continue service and about to lose 18 years of service.

It’s a long shot but looking for recommendations for this process.
 
So don’t lose hope. I’m still going through that process. I started my non duty related in 2020 and here I am 2023 waiting for MEB to be initiated. The NDR PEB deemed my back made me unfit but was not duty connected. I appealed with army HRC and they granted my connection. Now I’m being sent from PEB to MEB. Don’t be content with their answer and you can appeal most things.
 
New Member said:
So don’t lose hope. I’m still going through that process. I started my non duty related in 2020 and here I am 2023 waiting for MEB to be initiated. The NDR PEB deemed my back made me unfit but was not duty connected. I appealed with army HRC and they granted my connection. Now I’m being sent from PEB to MEB. Don’t be content with their answer and you can appeal most things.
Click to expand...
May I ask, How were you able to overcome the NonDuty issue? I am so lost in this mess. I just received the election memo. I agree, I want to appeal it. This happened during active duty time. but no LOD is my problem. any suggestions?
 
mos63b said:
May I ask, How were you able to overcome the NonDuty issue? I am so lost in this mess. I just received the election memo. I agree, I want to appeal it. This happened during active duty time. but no LOD is my problem. any suggestions?
Click to expand...
I am a guardsman so it was super hard but my back didn’t get messed up until after I flew for the military. The statute of limitation on that LOD I think is a year. When you do your case, they can grant service connection without the LOD. Just prove the clear and unmistakeable with your medical documents, pay stubs during the deployment and your title 10 orders. That sick hall visit where you got Motrin should still be in your med records. If they did any mri or imaging that would help too. Not sure where you deployed and what role medical care was available.
 
We’re there witnesses to your fall or your pain afterwards? If so, get witnesses to write statements. Second seek legal counsel. Third, study the system and use every appeal until you get a just decision.
 
Get a copy of your sick call visit clinic notes.
 
I recommend that you submit a FOIA request to the VA using VA Form 20-10206 seeking your VA Claims File (C-File). The C-File often contains in one place all of the member's military health care records from way back (VA calls them service treatment records) that might not otherwise be easy to get. The C-File will also have service records showing various deployments or dates of service, as well as VA medical records, Compensation & Pension examination reports, Disability Benefits Questionnaires and other internal VA records reflecting how VA made its service connection determination. It can take 90 to 120 days to get VA to cough the C-File up, so you should get right on it so that if there's anything useful you might be able to use it at a PEB formal hearing on in a USAPDA appeal or an HRC appeal under the LOD regulation, AR 600-8-4. Neither HRC nor the PEB have access to the C-File. They access VA records on JLV and only in the most cursory manner designed to support their NDR conclusion.
 
Retired atty, I was told they had access to my Va files as that is where most of my records are. I have my CFole a few months ago but no paperwork from Afghanistan where I was treated. No surprise there.. I can probably get buddy statement who went with me that day.

I just requested a IPEB, I found some medical paperwork that was not submitted with my original paperwork. The Soldiers Counsel believes I will be denied at IPEB but is hoping I can plead my case at formal board.

My quest is, Do you think I should submit the X-rays I found which shows I got treatment from VA in 2015 and continuous care since or should I wait and submit it as new evidence to the formal board as new eveidence. Thanks
 
You should consult with your Soldier's Counsel to get his or her view on what to submit to the IPEB or to a FPEB. My own view is that you should submit to the IPEB any evidence you have showing that your back, neck or migraines are duty-related from your deployment to Afghanistan. I think it is important to get your evidence and arguments before the PEB as soon as possible. But, you need to organize the documents and put together the narrative for the board that explains how they show you incurred or aggravated your conditions while in an active duty status for more than 30 days. That includes your VA rating which presumably found service connection for the conditions at issue in the NDR process. HRC (as well as USAPDA and the ABCMR) takes the position that a VA rating and service connection determination are not relevant to a military disability proceeding, but that is not the law. A VA rating is relevant to both the unfitness decision and the LOD determination and, although it is not binding on the military, it must be considered as part of the record as a whole. I've attached an excerpt from a recent pleading I filed in the Court of Federal Claims on the issue so you can see what I'm talking about. It arose in an NDR case where HRC, the USAPDA, and the ABCMR all refused to consider as relevant the VA service connection determination for the condition at issue as well as statements and testimony by the client and two others regarding how his condition manifested while he was deployed to Afghanistan.
 

Attachments

RetiredAtty said:
You should consult with your Soldier's Counsel to get his or her view on what to submit to the IPEB or to a FPEB. My own view is that you should submit to the IPEB any evidence you have showing that your back, neck or migraines are duty-related from your deployment to Afghanistan. I think it is important to get your evidence and arguments before the PEB as soon as possible. But, you need to organize the documents and put together the narrative for the board that explains how they show you incurred or aggravated your conditions while in an active duty status for more than 30 days. That includes your VA rating which presumably found service connection for the conditions at issue in the NDR process. HRC (as well as USAPDA and the ABCMR) takes the position that a VA rating and service connection determination are not relevant to a military disability proceeding, but that is not the law. A VA rating is relevant to both the unfitness decision and the LOD determination and, although it is not binding on the military, it must be considered as part of the record as a whole. I've attached an excerpt from a recent pleading I filed in the Court of Federal Claims on the issue so you can see what I'm talking about. It arose in an NDR case where HRC, the USAPDA, and the ABCMR all refused to consider as relevant the VA service connection determination for the condition at issue as well as statements and testimony by the client and two others regarding how his condition manifested while he was deployed to Afghanistan.
Click to expand...
This is very interesting, First, I appreciate your response. it seems like the military just pushes through in the hopes you will just accept what that say and be done. I read the DODI 1332.18, it states the IPEB can not change the outcome however, only FPEB can change NON- DUTY PEB issue not sure how true that is.

In my case the injury in afghanistan manifested with the fall, but I just sucked it up for a while before finally going to VA. I am so stupid. My decsion will be to play the waiting game wait on IFEB for denial then request the formal board an submit new eveidence. I am not sure even if the evidence will help.

Last question. If I may, when I hurt my back again in 2017, I was on inactive duty reserve time (Drill weekend) taking a PT test. (LOD) was done for my lower back, does this count as LINE OF DUty. I was told this really doesn't help my case because military is evualuating for my neck and migraines. They never added my neck to the LOD, I was doing situps when injuried. what a mess. The soldiers Counsel dont seem enthusisatic I will prevail. NOw we playout the waiting game. With that said, Thank You again..
 
Where HRC has determined a case should be dispositioned as non-duty related, the PEB does not have the authority on its own to re-refer the case to the IDES as a duty-related case based on evidence presented to the PEB, including during a hearing. Pursuant to Army Reg. 635-40, ¶ 5-23.c., if the PEB thinks based on evidence presented to it that it may be questionable whether the case should be NDR, then the PEB can request that HRC review and confirm the NDR determination. Essentially, it’s an advisory opinion request, except that the PEB is bound by the HRC determination.

To the extent that you have evidence that you think supports an argument that your back injury is unfitting, you should definitely present that to the PEB, even though it’s not part of the HRC referral, and argue that the PEB should refer the back condition to the IDES – which it does have the authority to do given you have an LOD determination for the back. If one condition goes to the IDES, all of your conditions will get another look at an MEB and PEB and you may be able to wrangle a positive LOD outcome along the way. But, you have to make a convincing case with medical records and perhaps command input, that your back prevents you from performing your duties. Otherwise, the PEB could also just find the condition not unfitting.

There is no question though that an injury incurred or aggravated during IDT, such as a drill period or unit assembly training, may be the basis for a disability retirement under 10 U.S.C. § 1204(2)(B)(i). See DoDI 1332.18, App’x 3 to Encl. 3, ¶ 3; Army Reg. 635-40, ¶ 5-13.a.2.(a) (reflecting the statutory eligibility language of § 1204 regarding a retirement by reason of a physical disability resulting from a disease incurred while performing inactive-duty training). 10 U.S.C. § 101(d)(7)(A) defines IDT as “duty prescribed for Reserves by the Secretary concerned under section 206 of title 37 or any other provision of law” and 37 U.S.C. § 206(a)(1) includes in that regard “under regulations prescribed by the Secretary concerned” a “regular period of instruction, or period of appropriate duty, at which the member is engaged for at least two hours, including that performed on a Sunday or holiday.” Army Reg. 140-1, Army Reserve – Mission, Organization, and Training, Section II, Inactive Duty Training, ¶ 3-4.b. discusses at length drill periods, which the regulation designates a “unit training assembly,” as constituting IDT.
 
RetiredAtty said:
Where HRC has determined a case should be dispositioned as non-duty related, the PEB does not have the authority on its own to re-refer the case to the IDES as a duty-related case based on evidence presented to the PEB, including during a hearing. Pursuant to Army Reg. 635-40, ¶ 5-23.c., if the PEB thinks based on evidence presented to it that it may be questionable whether the case should be NDR, then the PEB can request that HRC review and confirm the NDR determination. Essentially, it’s an advisory opinion request, except that the PEB is bound by the HRC determination.

To the extent that you have evidence that you think supports an argument that your back injury is unfitting, you should definitely present that to the PEB, even though it’s not part of the HRC referral, and argue that the PEB should refer the back condition to the IDES – which it does have the authority to do given you have an LOD determination for the back. If one condition goes to the IDES, all of your conditions will get another look at an MEB and PEB and you may be able to wrangle a positive LOD outcome along the way. But, you have to make a convincing case with medical records and perhaps command input, that your back prevents you from performing your duties. Otherwise, the PEB could also just find the condition not unfitting.

There is no question though that an injury incurred or aggravated during IDT, such as a drill period or unit assembly training, may be the basis for a disability retirement under 10 U.S.C. § 1204(2)(B)(i). See DoDI 1332.18, App’x 3 to Encl. 3, ¶ 3; Army Reg. 635-40, ¶ 5-13.a.2.(a) (reflecting the statutory eligibility language of § 1204 regarding a retirement by reason of a physical disability resulting from a disease incurred while performing inactive-duty training). 10 U.S.C. § 101(d)(7)(A) defines IDT as “duty prescribed for Reserves by the Secretary concerned under section 206 of title 37 or any other provision of law” and 37 U.S.C. § 206(a)(1) includes in that regard “under regulations prescribed by the Secretary concerned” a “regular period of instruction, or period of appropriate duty, at which the member is engaged for at least two hours, including that performed on a Sunday or holiday.” Army Reg. 140-1, Army Reserve – Mission, Organization, and Training, Section II, Inactive Duty Training, ¶ 3-4.b. discusses at length drill periods, which the regulation designates a “unit training assembly,” as constituting IDT.
Click to expand...
Retired Atty, you are very convincing, I find it interesting that you make these wonderful sugguestions, I do understand that it may or may not work. I am just wondering why the Soldiers Counsel has failed to mention these same concepts. I am not trying to point the finger but it is a serious concern when you think about it. I can write this up on my own and submit to the PAO at HRC to send to the PEB board. Anyways, I will give it a shot. Could you recommend a template, I could use to send a letter to the PEB board if possible. you have been a tremendous help thus far. Memeber on this board should be greatful for the advise that is given here. Thank you.
 
I recommend that you work with your assigned Soldier's Counsel when it comes to communicating and submitting anything to the PEB. To the extent you think that suggestions here have merit in or may be useful for your case, make your Soldier's Counsel aware of them and discuss with counsel the upside or downside of proceeding with them.
 
I just received a letter with the date of the Formal Board for next year. Has anyone had any luck changing a Non-duty PEB to and Duty related PEB with a formal board? I would like some input if possible. It seems they are trying to push me out. Very SAD!
 
mos63b said:
I just received a letter with the date of the Formal Board for next year. Has anyone had any luck changing a Non-duty PEB to and Duty related PEB with a formal board? I would like some input if possible. It seems they are trying to push me out. Very SAD!
Click to expand...
Yes the only success I had was the formal. I got to see all three of the officers and explain what you cannot see from paper. This was my pivot to getting army HRC to duty connect my back. The formal board requested my state add my back as a duty connected condition and my state laughed and said no
 
Does it normally take almost a year to get to FPEB. I disagreed with PEB on Non-Line of duty injury. I received a letter this past May for a Formal board in Jan 2024.. Some ppl on here have gone through in a matter of a few months. this is almost a year. This is insane.
 
mos63b said:
Does it normally take almost a year to get to FPEB. I disagreed with PEB on Non-Line of duty injury. I received a letter this past May for a Formal board in Jan 2024.. Some ppl on here have gone through in a matter of a few months. this is almost a year. This is insane.
Click to expand...
Yes its normal. Consider hiring a dedicated private attorney as they can help craft your case to hopefully get the results you want.
 
mos63b said:
I just received a letter with the date of the Formal Board for next year. Has anyone had any luck changing a Non-duty PEB to and Duty related PEB with a formal board? I would like some input if possible. It seems they are trying to push me out. Very SAD!
Click to expand...
December 2022 I got a NDR PEB. I did not agree with the decision so I requested a formal board, which happened in August and in September my NDR PEB got changed from a Duty related PEB. Get statements from everyone that you was around when the injury occurred. A statement from your doctor also goes a long way. Also educate yourself on the symptoms of your condition and how long it takes for it to appear or get worst, present all that to the formal board and tell your story that paper can not tell. I did my Formal board over the telephone because i am OCONUS in the reserves but they do listen and take all the evidence into consideration. Dont take the first thing that they give you especially if you know that your service caused your injury.
 
mos63b said:
Does it normally take almost a year to get to FPEB. I disagreed with PEB on Non-Line of duty injury. I received a letter this past May for a Formal board in Jan 2024.. Some ppl on here have gone through in a matter of a few months. this is almost a year. This is insane.
Click to expand...
Thats normal, I requested mines in December 2022 and my board was not until August 2023
 
You must log in or register to reply here.
Top