LOD (or lack thereof) question

C

Chuckie

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
If you don't want to read my diatribe, my question is simple: Should I be worried about things that are documented in my records from my previous Guard unit but don't have an LOD? Is there a way to go back and get them done before I go down the MEB road?

Back story: "Guard Baby", 18 years at one Air Guard unit and then the last three at another. I am now in the middle of some major neck issues (3 herniated discs) as well as other back pain that are work-related.

I have recently began looking at my medical records, and the lack of documentation upsets and frightens me now that it looks like my condition is going to lead me to an MEB.

To summarize the issues (all occurred while on duty):
1 .Neck injury in 1998 (documented but no LOD, but mis-diagnosed as a pulled muscle IMHO)
2. Ran over by an airport transportation vehicle in 2002, partial tear to right knee MCL (documented but no LOD). Physical therapy but no surgery.Still hurts to run/walk any long distance.
3. Neck injury in 2005 (not documented and no LOD, but was off of the flying schedule for 1 1/2 months. My paperwork shows on/off DNIF but gives no reason). Flight Doc in this case later involved in all kinds of fraud and shady medical practices.
4. Fell on ice in 2007, injured right wrist with ligament tear but no surgery. (documented but no LOD) HURTS a lot to do push-ups or any exercises/work that causes me to flex my wrist back.
These are all from the previous unit I was at.

At my current unit, I injured (re-injured) my neck while on duty (pulling 6-9 gs several times a week isn't conducive to a healthy neck) in 2010. Finally got an MRI done, and opted not to get surgery done so I can continue flying. It took 4 months to heal with PT and epidural injections before the pain was bearable again. Pain was on-again, off-again for the past two years with a couple of injections at the one year point and again six months ago. Two months ago, I hurt it again on another high-G sortie. This time the pain is really bad, with all kinds of arm/nerve issues accompanying the neck pain. Just had an MRI done and have gone over my options with the Doc, but pretty much none of them are going to turn out favorably with me continuing to fly jets. The surgical option that is probably the best for me (disc replacement of one level, or multiple levels on an FDA trial that my civ Doc/flight doc may push for) would automatically trigger an MEB. I also have had chronic lower back pain that I haven't even had looked at yet, and I suspect that it's not going to be good news for me, either.

The MEB will probably see that I have a pretty messed up spine, and I'm not sure what they are going to say. I'm not sure if I want to stay in if I am no longer able to fly. I have 21 years (all Guard) in and would just as soon move on to a civilian flying job (will be a big pay cut though). So, I have to hedge my bets and make sure all my bases are covered. I know some of the stuff is small potatoes compared to real injuries that other folks get, but I've been living in constant pain for the past two years and the only way for it to stop/become manageable is through a disqualifying procedure. So I am wondering if the lack of LODs are going to be a huge issue? The current back issue isn't documented yet with an LOD but it will be.

Thanks a bunch for any insight that anyone might have. This forum is awesome, and I have learned a lot in the past few weeks.
 
What i have seen in the Army Reserve is that some of the commands are willing to work on LODs after the fact as long as you have the documentation. The is one the blocks that are ckecked once the SM has been identified for the MEB.
 
It may or may not matter. The MEB is supposed to make a determination about whether your condition(s) was/were incurred while entitled to basic pay, or service aggravated. I have seen many cases adjudicated properly without an LOD done. It is always best to have an in the line of duty finding as it takes any ambiguity out of the picture. (And, yes, it is not unusual to see LODs done many years after an event). Unfortunately, I have also seen cases where lack of an LOD was used against a member.

Bottom line, I know that this is not the definitive answer you probably wanted. I defer to my first sentence- It may or may not matter.

Hope all goes well for you!
 
Everyone that I know from the Army Reserve, myself included, did not go to the MEB without an LOD. Most of us got LOD's well after deployment. It makes the process longer, but it's being done.
 
Thanks for the answers everyone. The mystery to me is how to get LODs done when the accidents were at another Guard base in another state, and the doctors that were there at the time are long since retired from the military. I keep in touch with one of them, but he does not serve in the military any more.
 
Chuckie said:
Thanks for the answers everyone. The mystery to me is how to get LODs done when the accidents were at another Guard base in another state, and the doctors that were there at the time are long since retired from the military. I keep in touch with one of them, but he does not serve in the military any more.
Click to expand...

If they apply the presumptions correctly, this is not a big deal. Recall, the conditions are presumed to be incurred in the line of duty and, if not, at least service connected. In the absence of controverting evidence meeting the high evidentiary standards required to overcome these presumptions, they should find the conditions in the line of duty. The lack of supporting evidnece is not an impediment (if they apply the presumptions correctly).
 
I'm in the guard going through the process and the MEB/PEB determined I have five service related medically unacceptable conditions and that's what was on the PEB memo sent to the VA for ratings (Apr). I granted i havent seen my 199, but my preliminary ratings are 50%DOD & 80%VA. I received my VA comp letter via snail mail 7/19 and they only rated 3/5 of my original conditions on the PEB memo - said not service connected because lack of LOD. The diagnosis is documented in my medical records during my active duty time. I'm not sure what I'm going to do as the VA letter says I have 12 months to provide evidence so I may try to get an LOD if I can find the right people to write it. Also worth noting, which I understand is typical because the PEB & VA rate conditions based on different criteria ie. military job verses umployability, but the VA rated me 70% for depression when the PEB didn't mention it....very interesting to say the least.... They did provide me with backpay back to my original VA claim date (Nov 2011), which I much appreciate.

My advice is to do all you can to get everything possible documented because you may need it when you least expect it - hang in there - this is a long process but worth it...Good luck:)

Timeline: (14 1/2 yrs total = 8.2 active + 6 guard)
FEB 2010 - Injured on active duty w/LODs
OCT 2010 - Sent back to mday/drill status - couldn't take fitness test (mthly drills w/in profile)
OCT 2011 - Fit-for-duty exam & recommended for MEB
NOV 2011 - Filed VA Claim
AUG 2012 - Transferred to guard med hold unit (no drills - only dr appts)
JAN 2013 - C&P exams
Feb 2013 - MEB
MAR 2013 - Signed NARSUM
12APR2013 - PEB unfit memo sent for VA ratings (5 x medically unacceptable conditions)
JUL 1st 2013 - eBenefits claims changed to "Closed" (three claims were showing - 2011, 2012 that I didn't file, and 2013 IDES)
JUL 12th 2013 - eBenefits changed to "Complete" for the original Nov 2011 claim; said a decision was made and a letter mailed
JUL 14th 2013 - I emailed PEBLO
JUL 16th 2013 - PEBLO checked system and said 199 being prepared; when I begged for preliminary ratings, shared I was rated 50% DOD & 80% VA but wouldn't be final until 199 complete
JUL 19th 2013 - Received VA Claim Letter in the mail w/80% documented ratings and one service connected condition is rated 70% but it wasn't one of the PEB memo's unacceptable conditions
 
Wow, Dwatson, that's a long time. I hope mine doesn't go nearly that long if I go down this road.

Thanks everyone for the replies!
 
Okay, so the very first step out of the gate for me in this process results in a hurdle. My Flight Doc directs one of the MED Group Sergeants to do an LOD for my May 2011 neck injury. The Sergeant then goes through my medical records and finds my (mis-diagnosed muscle pull) injury in 1998, then calls the NGB to see if I can get an LOD for my 2011 injury when I have hurt my neck in 1998 and "was just fine for all of those years". And let's not forget that the 1998 diagnosis was a muscle pull, not several herniated discs which were documented in 2011. According to the Sergeant, who "knows a lot about the LOD/MEB process", I (a) do not deserve an LOD for a very clear on-the-job and documented injury, and (2) I can't get an MEB without an LOD. According to this guy (and this is almost verbatim what he said), I'm dead in the water military-wise and can take up my injury claims with the VA after they remove me from my flying position for not being medically qualified to fly fighters any more.

Now I'm fairly sure that this is all complete B.S., but I'm bringing it up on here where the experts are. Given his rationale, if a service member pulls a muscle in his/her leg in 1998 and gets run over by a forklift and breaks their leg in 2011, then they shouldn't get an LOD for it. Methinks that I have someone in our Med Group who is just looking for a reason not to do an LOD on me.......am I right?

I am prior enlisted and come from a long line of enlisted service members. I am always courteous to everyone I see, especially the folks in the Med Group who take care of me and kept me flying up to this point. I'm just at a loss why this person would go out of their way to try and sabotage me from the get-go in this process. I literally feel like I've been stabbed in the back.
 
Jason Perry said:
If they apply the presumptions correctly, this is not a big deal. Recall, the conditions are presumed to be incurred in the line of duty and, if not, at least service connected. In the absence of controverting evidence meeting the high evidentiary standards required to overcome these presumptions, they should find the conditions in the line of duty. The lack of supporting evidnece is not an impediment (if they apply the presumptions correctly).
Click to expand...

Not quite that simple Jason. A normal, drilling reservist served 24 days of inactive duty and 14 days of active duty a year. So its far more likely that a disability was incurred while the reservist was NOT on a duty status.

I'll cite a couple of examples out of real cases I worked. A reservist on a weekend drill has an epileptic fit, collapsed and broke his nose. The finding was the broken nose was in line of duty but not the epilepsy. With no history of head trauma, it was considered congenital, and therefore EPTS. In another case a guardsman on a weekend drill had a myocardial infraction (heart attack). The hospital records showed the guardsman had significant blockage in his arteries which led to the heart attack. That was also considered EPTS.

Prior to 14 November 1986 (PL 99-661), a disease carried very few benefits for a reservist. So it also had to be determined whether the disability was an injury or disease. Simple, right? Not always. Whats Lymes Disease?? Its very name says its a disease. But I approved those considers as ILOD based on injury, not disease. I based that on the fact that Lymes Disease is caused by a tick bite, which is an injury.

Those were fun days . . .
 
But in my situation, the Med Group MSgt is telling me that I am not entitled to an LOD for hurting my neck on a very specific, documented sortie incurred while I was on Annual Training days. He's saying that the reasoning is that I hurt my neck 13 years prior and was "fine" since then, and it wasn't even listed as the same type of injury (pulled muscle vs. herniated discs/etc.). I am looking at 36-2910 incorporating through Change 2, 5 April 2010, and all I read in there runs completely counter to what he's telling me. Is there anyone on here who might be able to come up with a legit reason why this MSgt thinks that my case is not deserving of an LOD? Even if both injuries were documented as the same thing, the regs include "aggravation of an existing injury" as qualifying criteria for an LOD.

Hell, he's not even the person who initiates or signs anything. As far as I know, he's doing the paperwork for the flight doc but has no say in the decision-making process at all.
 
Last edited:
Ed Mercanti said:
Not quite that simple Jason. A normal, drilling reservist served 24 days of inactive duty and 14 days of active duty a year. So its far more likely that a disability was incurred while the reservist was NOT on a duty status.

I'll cite a couple of examples out of real cases I worked. A reservist on a weekend drill has an epileptic fit, collapsed and broke his nose. The finding was the broken nose was in line of duty but not the epilepsy. With no history of head trauma, it was considered congenital, and therefore EPTS. In another case a guardsman on a weekend drill had a myocardial infraction (heart attack). The hospital records showed the guardsman had significant blockage in his arteries which led to the heart attack. That was also considered EPTS.

Prior to 14 November 1986 (PL 99-661), a disease carried very few benefits for a reservist. So it also had to be determined whether the disability was an injury or disease. Simple, right? Not always. Whats Lymes Disease?? Its very name says its a disease. But I approved those considers as ILOD based on injury, not disease. I based that on the fact that Lymes Disease is caused by a tick bite, which is an injury.

Those were fun days . . .
Click to expand...

It might be quibbling or it might be pedantic- but, I think it is that simple. At least to the first step. The agency, if it applies the presumptions should come to a straight forward answer. The resolution of that answer may or may not be what either side expects. But, my point is that the passage of time should not be an impediment to issuing an LOD determination.

(Note, you raised some interesting issues in your examples. I am not sure I agree with all of the conclusions, but, I do certainly get your point and I see the bases for the conclusions and examples. And, as always, all of these issues- and really almost every issue- turns on the underlying facts).

My point in my answer to the poster was that the passage of time is not an impediment to applying the presumptions and coming up with an answer (whether it is the correct answer may be further debatable post decision). I think the most important point, initially anyways, is that they have to process the LOD determination in the first place. Most times, when they get things wrong, it is because they have failed to properly apply the presumptions.
 
Jason Perry said:
It might be quibbling or it might be pedantic- but, I think it is that simple. At least to the first step. The agency, if it applies the presumptions should come to a straight forward answer. The resolution of that answer may or may not be what either side expects. But, my point is that the passage of time should not be an impediment to issuing an LOD determination.

(Note, you raised some interesting issues in your examples. I am not sure I agree with all of the conclusions, but, I do certainly get your point and I see the bases for the conclusions and examples. And, as always, all of these issues- and really almost every issue- turns on the underlying facts).

My point in my answer to the poster was that the passage of time is not an impediment to applying the presumptions and coming up with an answer (whether it is the correct answer may be further debatable post decision). I think the most important point, initially anyways, is that they have to process the LOD determination in the first place. Most times, when they get things wrong, it is because they have failed to properly apply the presumptions.
Click to expand...

I've had DA Forms 2173's initiated long after the injury and approved those LODs. Problem you will sometimes encounter is no medical treatment was sought or recorded at the time of injury (making completion of Section I damn near impossible) or the commander having left the command or even the service (current commanders sometimes balk at completing Section II if they don't have first hand knowledge of the incident).

For diseases, incubation periods must be considered as well as genetic propensities of the condition.

I remember one case (the cases I'm citing is when I worked at Headquarters, First Army, Fort Meade, MD and not the ABCMR) where a 22 year old reservist was diagnosed with an inoperable brain tumor around 5 or 6 months after he was released from 3 1/2 months of initial active duty for training (now initial entry training). They sent me the LOD for approval. I sent it to Kimbrough USAH and asked (you have to be specific with the docs) whether the reservist's tumor would have had its origin in IADT which ended 5/6 months before the diagnosis. The Deputy Commander, Kimbrough USAH called me and said it was impossible to say for sure whether it did have its origin during IADT. He said it was as likely as not that it did though.

While the military is not bound by title 38 which requires the benefit of doubt be given the soldier, that was sufficient for me to approve the formal LOD as ILOD.

Many twists and turns in LOD investigations.
 
Chuckie said:
It's almost as if I'm talking to myself.......

:(
Click to expand...

Bottom line, you should get an LOD and it is not that problematic that the disability occurred years ago.
 
Jason Perry said:
Bottom line, you should get an LOD and it is not that problematic that the disability occurred years ago.
Click to expand...

Sorry for our discussion of the fine points of LOD investigations. As Jason said, ask to have an LOD initiated on the incident that caused your disability. It can be done. But it may not be easy . . .
 
Okay, so I clear one hurdle at our Med Group, only to have another one placed on me. In a nutshell, they are now going to do an LOD on me for my May 2011 neck injury while on 10 days of Annual Training. That's all fine and good, but now I am getting all kinds of gibberish from the Med Group commander about how I am not going to get an MEB and instead will probably be removed from the Air Guard through the "Non-Duty DES" determination. She cited the fact that I was not on 30 days of active duty orders at the time of the injury. She said that this basically means that it is "EPTS" because of the lack of being on orders at the time of the specific injury. Now, I did have another neck injury back in 1998 while on active duty, but it wasn't fully investigated and I was returned to duty after a week and a half of physical therapy +pain killers (muscle pull diagnosis).

I'm pretty well-read in the AFIs and DODIs now, and it all seems to run counter to what the Med Group is claiming, unless I am missing something somewhere. It seems like they are mis-applying EPTS, and the "30 days" wording in the regs is sort of confusing to me. Does the 30 days mean at the beginning of service (as in when you enlist and go to basic) or does 30 days mean any 30 days?

Given my situation, should I be in the DES process or the Non-Duty DES process? I find it incredibly hard to believe that (1) I'd have a Line of Duty but be removed from the military via a process that is meant specifically for NOT in the line of duty, and (2) that a service member with many years of service would be treated differently if injured on drill weekend/annual training versus on >30 days of orders. Am I wrong here?

Sigh........:(
 
Last edited:
Hey Chuckie, I was a guard baby too that switched to the reserves just before my medical issues started. That is complete BS from your medgroup but not really surprising. The ANG and Reserves are painfully inept and incompetent in a lot of cases that involve a possible MEB. Part of the problem I think is the good old boy network in the guard/reserve to take care of issues such as this under the radar when in reality it hurts the service member in the long run. Bottom line is you should have an LOD from the injury while you were on AT days and no it doesn't matter if you were on less than 30 days of orders. You need to start and tell your medgroup that you are starting an IG complaint and Congressional Inquiry by your local Congressman about their practices. That was the only way I got answers with my MEB/LOD case in the reserves.
 
It's long but hope you understand.
I am also in the same pickle as you Chuckie. I'm also fighting the "Non-Duty DES" Sort of a little different. I blew out my back in 2004 in Iraq had it documented. Was told to finish my tour. Got back to homestation. Showed Medgroup my EMEDS documentation. They told me to return back in two weeks. My orders ended and I had a LOD created. At that time I had no idea about anything becuase I was young and dumb. A month after I was home I was having sciatica issues and being able to walk. The med group had me go to the nearest MTF that was 3hrs away. The captain there said that I had two herniated discS but, I'm fit for duty. WHAT??????? Med group says that I'm fine and they want to close the LOD. I told them "no I'm not fine". Medical technician was very fiesty with me but I prevailed. Got the "OK" to see a local civilian provider and had numerous shots to allieviate the pain. It was only getting worse. I was then called back to the med group. By the way I'm a fulltime technician also. They told me that they are going to send me down to the Offutt MTF again for an evaluation again. At this point in time I am unable to drive. My wife drives me down. Same thing again. "I feel that you are fit for duty". My wife tells the captain "something is not right with my husband". He says "I think he is fine". Argued with him for about 10 minutes and then left. Got home and the same thing again with the med group. Won again to stay on my LOD (what I didn't know is that they closed it already). So during this time I have a profile for my job in guard saying I can't really do anything. My supervisor is getting really annoyed by this process. We both agree something has to be done and we go see the MSG commander. Tell him that this is being dragged around and around. He talks to the clinic and I get more injections and then I get scheduled to go to Offutt MTF again. This time half-way there at 0400 (they always scheduled me so early in the morning just to piss me off) I hit a piece of sheet metal on the interstate and tear out the bottom of our car. I was pissed and went and saw a different provider on my own ( my own money). At this point in time I was pissing myself and couldn't feel my feet. He saw my MRI and told me that it is so bad that it will never clear up on its own. I scheduled the surgery on my own and had it done two weeks later. Surgery was done 1 year and 3 month after my paperwork was started.

Here is were it gets interesting.
If you remember my orders ended before they started my LOD.
I was never put on orders. (I was young and never told anything by anyone of my rights)
I had to pay $100 dollars everytime I went to the Offutt MTF
They cancelled my LOD 3 months after it started. ( I didn't know until almost 9 years later)
They were still paying for my injections after my LOD cancellation though. What????? Doesn't make sense.
Found out that they didn't keep my profile on record. Supervisor is only proof that I had one.

Low-Back condition timeline
2004 March- documentation starts
2005 July- laminectomy/microdiscectomy (L4-L5,L5-S1) Self paid for
2009 August-microdiscectomy (L4-L5,L5-S1) Self paid for
2011 January-microdiscectomy (L4-L5,L5-S1) Self paid for/then reimbursed by VA/VA documents that service connected
2012 Febuary-Anterior Lumbar Interbody Fusion (L4-L5,L5-S1) VA paid for/VA reiteriates that all surgeries are connected.

Now at Guard drill I am notified that I will be "NON-DUTY RELATED DES" processed.
Have note from surgeon that I'm cleared of profile. Flight doc will not clear my profile.
NGB has notified the clinic to start the Non-duty paperwork.
Requested to have MEB from the NGB. NGB states "should of had and MEB during initail injury. NGB also replies with "no active LOD"
NGB states these are not related to my first LOD. My surgeon states that is BS because every surgeon knows that you have surgery on your spine it is prone to happen again.
NGB states that I even didn't have a profile in my medical records. Is that my fault, no. That is an administrative error by the clinic and negligence on there behalf.

The flight doc ask why I haven't been discharged earlier. Supposidly DODi instructions state you are only allowed two surgeries on the same thing according to the regs then it is considered chronic and you are a liability. Maybe because I'm now at 14yrs of service and if I get kicked out now they don't have to give me anything.

I have started with the First Sergeant,JAG, and the IG about this issue. Command will not help me at all. They don't know why I just don't leave. Congressional is next. I have a civilian lawyer who specializes in medical discharges also on hand if all else fails.
DO NOT SIGN ANYTHING ON THE "NON-DUTY RELATED DES" PAPERWORK.
 
Wow, tysuse, sounds like you have a big mess on your hands. Sounds like you are doing the right thing and fighting it through the proper channels. I'm saddened to see that your leadership and MDG folks aren't on your side.

My case was brought up this weekend in my unit's DAWG, and I have been notified (informally) that I am having two LODs processed, one for the initial injury and another for the aggravation. If the NGB will sign off on the LODs, then I "should" be entered into the DES and not the non-duty DES. This came after a lot of research and hard work on my part to overcome several obstacles placed in my path by various folks who didn't see things quite as clearly as I did. It's certainly not over, but I am no longer worried that my MDG personnel are out to screw me. Next step is to get past the NGB, and then the VA, then the MEB, etc, etc, etc......
 
You must log in or register to reply here.
Top