Looking for Advice and/or a Good Lawyer

ArmyDiabeticHulk

PEB Forum Regular Member
Registered Member
I'm approaching 17 years active duty in the Army and was recently promoted to Lieutenant Colonel. Last year, I was diagnosed with Type 2 Diabetes and was hospitalized for several days. I initially required the use of insulin but I was eventually able to get off of it and now control my blood sugar through pills alone in an effort to try and remain in the Army. Five years ago, this would not have been an issue; but now the environment is one of readiness and I’ve been deemed non-deployable and unfit for duty by the Army medical system. It doesn’t matter that I am in my final assignment, which is non-deployable, and that I wouldn’t deploy either way; nor does it matter that even if I did deploy that I would do so as an Analyst, which would not place me in the front lines. Again, none of this seems to matter; the only thing that matters is that because I can’t deploy under these new rules, I can no longer serve, regardless of the fact that I was never going to deploy before I retired even before the diabetes diagnosis.

If this had been the end of it, I would take the decision and drive on; I’m a Soldier and have learned to endure a lot in service of my country; but I have struggled with anxiety, obsessive compulsive disorder and depression for more than a decade. I have records of my treatment for these issues going as far back as 2013, and they first manifested after my second deployment. I’ve been seeing Psychiatrists and taking various pill medications for years and I’ve been off and on in therapy for years too. I started therapy again several months ago as I began to become more depressed and anxious due to the medical separation, a large workload, and health issues among numerous other stressors. I was honest with the doctors when I talked to them as part of the Medical Evaluation Board and despite the stigma that Soldiers face at times when they’re known to have mental health issues I did my best to convey how bad it could be. In addition, all of my mental health records were available to the Army. The VA determined that my mental health issues were severe enough to warrant a 70% disability rating for obsessive compulsive disorder and depression as part of a 90% overall disability rating. The Physical Evaluation Board appeared to disregard most of this and determined that my mental health issues were not unfitting because my performance evaluations were satisfactory and my narrative summary and other documents didn’t appear to show a significant impact to my ability to work; due to a severe understating of my mental health issues in the portion of the medical documents that the Physical Evaluation Board actually read. This decision ensures that I will be forced out of the Army with a 20% disability rating, since they only use the unfitting conditions for their rating, and I need 30% or more to be able to get a medical retirement from the Army.

My diabetes is well controlled with oral medications while my mental health issues are less than adequately managed, also with oral medications, and with numerous side affects that impact my quality of life. My obsessive compulsive disorder and depression, even with medication, would undoubtedly get worse if I were to deploy while my diabetes would do little to hinder my work since I'm not on insulin. In spite of this, because I require oral medication for my diabetes I am deemed non-deployable even though I take oral medications for my mental health issues but that doesn’t make me non-deployable in the mental health aspect; I also require the use of a CPAP for sleep apnea which, again, does not make me non-deployable. They use my good performance evaluations as justification to determine that my mental health issues are not unfitting even though, by that logic, that should also mean that my diabetes is not unfitting as well. The Physical Evaluation Board seems to have arbitrarily used one standard to determine that I am unfit because of the diabetes and another arbitrary standard to determine that I am fit for any mental health issues. From my perspective, it appears that this is being done in order to remove me from the Army but to do so in a way that would deny me a retirement since I’m a part of the legacy retirement system. It feels like I’m being punished for being diabetic even though I did nothing wrong; I’ve never failed a physical fitness test and I’ve always complied with Army body fat standards.

I've been less than impressed with my legal representation, which appears to be less concerned with fighting for me and more concerned with not doing anything that will upset the Physical Evaluation Board members. I’m told I can’t argue that the Informal Physical Evaluation Board made the wrong decision, I can’t argue that my mental health issues were understated and that my diabetes was overstated, I can’t object to the fact that they seemed to disregard anything that the VA stated as part of the 70% rating. I can only try to provide new information and ask the same board that made the original decision to reconsider and I have to do so very nicely so as to not upset them even though, after nearly 17 years in the Army, they’re trying to cast me aside like I don’t matter. If I were allowed I would sign a waiver to deploy, I would do what I had to in order to continue to serve because I am proud of the work I do and am proud of my country. I am not; however, proud of how the Army medical system is treating me right now, I am anxious and depressed and the Army seems determined to punish me for getting sick. My therapist was concerned enough to place a temporary P3 profile on me but at the end of the day it will likely do little to convinced the IPEB that they should reconsider. Initially I went into this process hoping to stay in for 20, now I'm just hoping I can at least get a medical retirement. I'm sorry for the long post and I know that this forum is full of people with stories just as bad or worse than mine. The IPEB will likely refuse to change their decision and I will request a formal PEB. I would be very grateful for any advice and/or to be linked up with a good lawyer with experience in this area that could help me.
 

ArmyDiabeticHulk

PEB Forum Regular Member
Registered Member
Thank you Sir. I really appreciate it. This is an awesome website, makes me feel a little less alone. Have a great day.
 

Usndocgreen

Well-Known Member
PEB Forum Veteran
Registered Member
I have retained Mr Perry at PEBlawyer.com I am still in the midst of my situation but he does know what he is doing and can recommend him.
 

Provis

PEB Forum Regular Member
Registered Member
My advice is to get a good outside lawyer. I have talked to Mr. Perry and he is very knowledgeable. In fact, we are considering hiring him. My wife is going through the exact same thing except that she hasn't started the process yet. She has been in 17.5 years and now all of the sudden is non deployable due to needing nasal rinses utilizing distilled water which can't be guaranteed in deployments. She has had 2 surgeries at her last duty station and her new treatments are working but she can't deploy to an austere environment. Its total bullshit. She has top blocks for her OER's and can do her job. She fears that she will have the same challenges that you are have encountered by sucking it up at the expense of her health and family. It seems like those who give the Army everything at the expense of their health are the ones most hurt by this non deployable policy.
 

ArmyDiabeticHulk

PEB Forum Regular Member
Registered Member
My advice is to get a good outside lawyer. I have talked to Mr. Perry and he is very knowledgeable. In fact, we are considering hiring him. My wife is going through the exact same thing except that she hasn't started the process yet. She has been in 17.5 years and now all of the sudden is non deployable due to needing nasal rinses utilizing distilled water which can't be guaranteed in deployments. She has had 2 surgeries at her last duty station and her new treatments are working but she can't deploy to an austere environment. Its total bullshit. She has top blocks for her OER's and can do her job. She fears that she will have the same challenges that you are have encountered by sucking it up at the expense of her health and family. It seems like those who give the Army everything at the expense of their health are the ones most hurt by this non deployable policy.
Thanks for the advice and for sharing. Thing is, I require a CPAP which means I need a power source with a plug, that is more likely to get in the way of deploying to an austere environment but that doesn’t matter, they can arbitrarily decide one is unfitting and the other isn’t. Also, if we did have to deploy to an austere environment because we just got into a war; you sure as hell be sure they’d throw all of these standards out the window like they did with body fat standards during the Iraq war. It’s BS.
 

Usndocgreen

Well-Known Member
PEB Forum Veteran
Registered Member
Hello,
So I am not providing medical advice here for legal reasons but there are a few things you may want to ask your docs about. One is a mandibular advancement oral appliance and the second is a hypoglossal nerve stimulator last is bimaxillary advancement. These are some options to treat osa that may improve your osa get you off cpap and still leave you deployable


A a
Thanks for the advice and for sharing. Thing is, I require a CPAP which means I need a power source with a plug, that is more likely to get in the way of deploying to an austere environment but that doesn’t matter, they can arbitrarily decide one is unfitting and the other isn’t. Also, if we did have to deploy to an austere environment because we just got into a war; you sure as hell be sure they’d throw all of these standards out the window like they did with body fat standards during the Iraq war. It’s BS.
 

aamonroe

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
We feel your pain. My husband is a type-1 diabetic. He was dx’d in 2005 as a young captain in the AF. He was found fit for duty every year until the massive downsizing, at which time, inexplicably, numbers previously considered fitting for duty were suddenly evidence of “uncontrolled” diabetes.
Diabetes in itself is a damned-if-you-do, damned-if-you-don’t condition in the military. If well controlled, you’re not retirement eligible. If poorly controlled, you put yourself at risk for medical evaluation boards, which suck.

After 8 years of fighting, my husband was ultimately medically retired (we just heard the news this past January!), after like you said, a measly 20% was offered, and he was separated the same day he was selected for promotion to lieutenant colonel.

I wish I could recommend our attorney, but he worked pro bono and only works via his attorney network. We just lucked out.

Before being hooked up with our attorney, by fortunate circumstances, however, we reached out to this guy via another attorney recommendation, and I really liked him, and would have hired him had it not been for the pro bono help we did receive. Bio — Midwest Military & Veterans Law

We also had recs for Tully Rinkey: Attorneys for Businesses & Individuals | Tully Rinckey PLLC

(Btw I did reach out to Mr Perry, but never heard back).

My advice to you is to comb over your medical record for *anything,* no matter how minute it may seem, that could constitute an issue with your diabetes. My husband is likewise well controlled, but being directed to exercise at his own pace and carry his personal diabetes monitor on his person was enough to take him from 20-40%. He is insulin dependent, however.

This system is seemingly designed to say no to siphon out those who will give up easily. Don’t take their bait! It takes a long time. They will say no a lot. I don’t know how those people sleep in good conscience; having been through this process three times and ultimately coming out victorious, I can say that from experience. We appealed at every possible level to include the AFBCMR and ultimately the court of federal claims. They put children in charge of writing the decision letters, and any good attorney can poke holes in their less-than-thorough arguments. I have faith you will be retired, ultimately, just hire somebody and be patient.
 

aamonroe

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
Also, I would ensure you are definitely type-2. Get a c-peptide antibody test done. Diabetes has several types beyond 1/2 and gestational (LADA and MODY coming to mind). They all share common characteristics but present differently. Many general healthcare professionals are unaware of the differences, and medical providers at an Army base/clinic may very well be in this camp. See an endocrinologist if you haven’t already.

My husband, for example, is a LADA diabetic—latent autoimmune diabetes onset in adults. They’ve gone away from calling type-1 “juvenile” diabetes because adults are now being diagnosed as type-1s (insulin dependent) and children are developing type-2 (insulin resistance). Basically, LADA is a slow death to the pancreas. My husband was 29 at the time of diagnosis, and able to control his condition with oral meds and food for several years, but his pancreas effectively quit working in about four years and he went on insulin therapy. He knew it was coming because the antibody and c-peptide tests indicated as such.
 
data-matched-content-ui-type="image_stacked" data-matched-content-rows-num="3" data-matched-content-columns-num="1" data-ad-format="autorelaxed">
Top