SGT. Jeffery D Hargrove, USAR,
Written Appeal for PEB Board Rebuttal
Subject: Reasons why the board should reconsider my case.
1. I wish the board to reconsider my case based on the following Regulations, and reasoning. I ask the board to reconsider the IPEB findings and find me permanently disabled at a rating of 100%; I provide my reasons for believing this rating to be appropriate in the other parts of this letter. If the board cannot decide on 100% permanent rating informally I ask the board to proceed to a Formal Physical Evaluation Board.
2. In my DA 199 section B Paragraph 1, it is stated you used VASRD 4.129. However the board deviated from established criteria, citing some symptoms of 70% and 100%, but ignoring that the prevalence of these symptoms entitles the higher rating. I ask the board to also consider the rules regarding “Reasonable Doubt”.
A. You did not use VASRD 4.130 as if you assign each symptom to its closest description is VARSD 4.130, DC 9411 you will find the majority fall in 70%. Failure to list VARSD 4.130 as an exhibit stands as proof under the law it was not referenced as an exhibit, all listed references and evidence must be listed.
B. Also VARSD 4.7 comes into effect, as evidence was provided established permanent and total disability due to unemployability from two government agencies. The failure to list such information in DA 199 section 11 is addressed in paragraph 3 of this rebuttal. In addition, 38 C.F.R. 4.1 clearly states "This rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations."
C. Since the VA who wrote the VASRD said I was 100% disabled for a single combat incurred injury, PTSD I contend that reasonable doubt exists. Because two government agencies came to different conclusions both using VASRD I believe they should be given equal weight. But to add to the claim I am permanently disabled and 100% disabled I also am receiving social security for PTSD as the sole condition for SS office determination for 100% permanent disability. By law Social Security has a very strict definition to be found disabled. “You must be unable to do substantial work because of your medical condition; and your medical conditions must have lasted or be expected to last at least 1 year, or be expected to result in death” Social disability does not award any money for short term, or temporary disability.
D. It could be understood that reasonable doubt exists, however given that I the soldier provided evidence that two government agencies consider me permanently and totally disabled this creates a situation as described in 38 CFR 3.102 Reasonable doubt. The presence of reasonable doubt exists, as such in cases of reasonable doubt "When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim."
E. As Reasonable Doubt exists with regards to my ability to work; it must be decided in my favor. But to further support this truth of law, I refer you to 38 CFR 4.10 to point out both that "The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment." and " . . . it will be remembered that a person may be too disabled to engage in employment although he or she is up and about and fairly comfortable at home or upon limited activity."
F. Because the inability to work is an automatic rating of 100% according to VASRD I request the board award a 100% determination.
3. You did not list as reference VARSD 4.130 only 4.129. Your ignored part of VASRD that is critical for a VASRD determination for ptsd. Also you listed Exhibits used; I submitted additional evidence that I have PROOF was received including exact dates. I was told this information WOULD be in my packet. That information includes VA rating, Social security determination, and personal psychiatric examinations. Those items were required to be in my packet, at my request as "subsequent medical Appenda". If they were in my packet they should be listed as exhibits in DA 199 Section 11. Either you failed to list all exhibits, or my peblo failed to include. Either way, it is an error in the PEB process that could entitle me to a new hearing. I have Proof this information was transmitted and received, Certified by secure computer network transmissions, along with proof of receipt and assurance it would be in my PEB board packet by Debra R. Levene at my request. I will provide this evidence at your request, via secure computer network transmission provided I receive acknowledgement of receipt, or Registered mail (meaning you must sign for it).
4. Missing evidence, also known as exhibits – 635-40 4-21 m-1 clearly states “Proceedings of the PEB are administrative and not judicial in nature; therefore, a board is not bound by the rules of evidence prescribed for trials by court-martial or for court proceedings generally. Accordingly, except as limited in (3, ) below, anything which in the opinions of reasonable persons is relevant and material to an issue, may be accepted as evidence. All evidence will be given such weight as is warranted under the circumstances” Because the evidence submitted by me the soldier was not limited by 635-40 m-3 it must be made record of IAW 635-40 4-21 m-1. The section it comes from is for formal board proceedings; however it does not specify FPEB it simply says PEB making it apply legally to both IPEB and FPEB.
5. My DA 199 includes a statement in paragraph 6 starting with, “Since you have a service-connected medical condition . . .” This statement shows the PEB may not have follow AR 635-40 A “Each case is first considered by an informal PEB. Informal procedures reduce the overall time required to process a case through the disability evaluation system. An informal board must ensure that each case considered is complete and correct. The rapid processing intended by the use of informal boards must not override the fundamental requirement for detailed and uniform evaluation of each case. All evidence in the case file must be closely examined and additional evidence obtained if required. The PEB will consider each case using the policies of chapter 3and the criteria provided in paragraph 4–19.” The case was not detailed complete and accurate. This could invalidate the DA 199. Because you recommend that I the soldier talk to the VA about benefits that I already receive, it is reasonable to assume you the board was not aware of said benefits already being awarded to me, the soldier. In addition, the board is required in all proceedings to obtain additional medical evidence that I the soldier submitted. As addressed in Paragraph 8 in this rebuttal. All evidence was obviously not closely examined.
6. The IPEB can at anytime revise its decision. I request the board to withdraw its decision, and conduct a new IPEB, weighing in on Reasonable Doubt, and evidence omitted from the original DA 199. I would like the Board to address their decision on Reasonable Doubt with regards to my permanent and total disability, and army regulations used for such determination for or against.
7. I request all members of the board initial every page submitted to the additional medical Addendum, to prove they gave fair hearing to all documents submitted. Initialing takes seconds, and as you are already reading the documents as required by regulation, should add no additional time to the process. I believe this to be a reasonable request.
8. I request the PEB president personally sign any future DA 199 forms, as I do not believe delegation of signing authority is authorized for this type of document. I request regulation citation if signing authority is authorized for this document, and a dated copy of delegation of signing authority for the authorized representative, should you elect to delegate signing authority again. I believe DoD directives supersede army regulations in this case, and as such request you reference them. DA 199 must be personally reviewed by the board president; the missing signature of the actual president of the board casts doubt on his review of the form, as if he reviewed it why would he hand it to someone else to sign. I refer you back to AR 635-40 A. Also I request that in the future military documents that request “grade” in the signing block include the grade of the soldier not the rank. So the next DA 199 block 12 would be correct.
9. The initial IPEB found a rating of 50% was warranted without taking into account my VA, Social Security, or private medical records. I believe these records all support a higher rating. Because of this I do not see how a lower rating or same rating would be justified given this evidence only supports a higher determination.
Written Appeal for PEB Board Rebuttal
Subject: Reasons why the board should reconsider my case.
1. I wish the board to reconsider my case based on the following Regulations, and reasoning. I ask the board to reconsider the IPEB findings and find me permanently disabled at a rating of 100%; I provide my reasons for believing this rating to be appropriate in the other parts of this letter. If the board cannot decide on 100% permanent rating informally I ask the board to proceed to a Formal Physical Evaluation Board.
2. In my DA 199 section B Paragraph 1, it is stated you used VASRD 4.129. However the board deviated from established criteria, citing some symptoms of 70% and 100%, but ignoring that the prevalence of these symptoms entitles the higher rating. I ask the board to also consider the rules regarding “Reasonable Doubt”.
A. You did not use VASRD 4.130 as if you assign each symptom to its closest description is VARSD 4.130, DC 9411 you will find the majority fall in 70%. Failure to list VARSD 4.130 as an exhibit stands as proof under the law it was not referenced as an exhibit, all listed references and evidence must be listed.
B. Also VARSD 4.7 comes into effect, as evidence was provided established permanent and total disability due to unemployability from two government agencies. The failure to list such information in DA 199 section 11 is addressed in paragraph 3 of this rebuttal. In addition, 38 C.F.R. 4.1 clearly states "This rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations."
C. Since the VA who wrote the VASRD said I was 100% disabled for a single combat incurred injury, PTSD I contend that reasonable doubt exists. Because two government agencies came to different conclusions both using VASRD I believe they should be given equal weight. But to add to the claim I am permanently disabled and 100% disabled I also am receiving social security for PTSD as the sole condition for SS office determination for 100% permanent disability. By law Social Security has a very strict definition to be found disabled. “You must be unable to do substantial work because of your medical condition; and your medical conditions must have lasted or be expected to last at least 1 year, or be expected to result in death” Social disability does not award any money for short term, or temporary disability.
D. It could be understood that reasonable doubt exists, however given that I the soldier provided evidence that two government agencies consider me permanently and totally disabled this creates a situation as described in 38 CFR 3.102 Reasonable doubt. The presence of reasonable doubt exists, as such in cases of reasonable doubt "When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim."
E. As Reasonable Doubt exists with regards to my ability to work; it must be decided in my favor. But to further support this truth of law, I refer you to 38 CFR 4.10 to point out both that "The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment." and " . . . it will be remembered that a person may be too disabled to engage in employment although he or she is up and about and fairly comfortable at home or upon limited activity."
F. Because the inability to work is an automatic rating of 100% according to VASRD I request the board award a 100% determination.
3. You did not list as reference VARSD 4.130 only 4.129. Your ignored part of VASRD that is critical for a VASRD determination for ptsd. Also you listed Exhibits used; I submitted additional evidence that I have PROOF was received including exact dates. I was told this information WOULD be in my packet. That information includes VA rating, Social security determination, and personal psychiatric examinations. Those items were required to be in my packet, at my request as "subsequent medical Appenda". If they were in my packet they should be listed as exhibits in DA 199 Section 11. Either you failed to list all exhibits, or my peblo failed to include. Either way, it is an error in the PEB process that could entitle me to a new hearing. I have Proof this information was transmitted and received, Certified by secure computer network transmissions, along with proof of receipt and assurance it would be in my PEB board packet by Debra R. Levene at my request. I will provide this evidence at your request, via secure computer network transmission provided I receive acknowledgement of receipt, or Registered mail (meaning you must sign for it).
4. Missing evidence, also known as exhibits – 635-40 4-21 m-1 clearly states “Proceedings of the PEB are administrative and not judicial in nature; therefore, a board is not bound by the rules of evidence prescribed for trials by court-martial or for court proceedings generally. Accordingly, except as limited in (3, ) below, anything which in the opinions of reasonable persons is relevant and material to an issue, may be accepted as evidence. All evidence will be given such weight as is warranted under the circumstances” Because the evidence submitted by me the soldier was not limited by 635-40 m-3 it must be made record of IAW 635-40 4-21 m-1. The section it comes from is for formal board proceedings; however it does not specify FPEB it simply says PEB making it apply legally to both IPEB and FPEB.
5. My DA 199 includes a statement in paragraph 6 starting with, “Since you have a service-connected medical condition . . .” This statement shows the PEB may not have follow AR 635-40 A “Each case is first considered by an informal PEB. Informal procedures reduce the overall time required to process a case through the disability evaluation system. An informal board must ensure that each case considered is complete and correct. The rapid processing intended by the use of informal boards must not override the fundamental requirement for detailed and uniform evaluation of each case. All evidence in the case file must be closely examined and additional evidence obtained if required. The PEB will consider each case using the policies of chapter 3and the criteria provided in paragraph 4–19.” The case was not detailed complete and accurate. This could invalidate the DA 199. Because you recommend that I the soldier talk to the VA about benefits that I already receive, it is reasonable to assume you the board was not aware of said benefits already being awarded to me, the soldier. In addition, the board is required in all proceedings to obtain additional medical evidence that I the soldier submitted. As addressed in Paragraph 8 in this rebuttal. All evidence was obviously not closely examined.
6. The IPEB can at anytime revise its decision. I request the board to withdraw its decision, and conduct a new IPEB, weighing in on Reasonable Doubt, and evidence omitted from the original DA 199. I would like the Board to address their decision on Reasonable Doubt with regards to my permanent and total disability, and army regulations used for such determination for or against.
7. I request all members of the board initial every page submitted to the additional medical Addendum, to prove they gave fair hearing to all documents submitted. Initialing takes seconds, and as you are already reading the documents as required by regulation, should add no additional time to the process. I believe this to be a reasonable request.
8. I request the PEB president personally sign any future DA 199 forms, as I do not believe delegation of signing authority is authorized for this type of document. I request regulation citation if signing authority is authorized for this document, and a dated copy of delegation of signing authority for the authorized representative, should you elect to delegate signing authority again. I believe DoD directives supersede army regulations in this case, and as such request you reference them. DA 199 must be personally reviewed by the board president; the missing signature of the actual president of the board casts doubt on his review of the form, as if he reviewed it why would he hand it to someone else to sign. I refer you back to AR 635-40 A. Also I request that in the future military documents that request “grade” in the signing block include the grade of the soldier not the rank. So the next DA 199 block 12 would be correct.
9. The initial IPEB found a rating of 50% was warranted without taking into account my VA, Social Security, or private medical records. I believe these records all support a higher rating. Because of this I do not see how a lower rating or same rating would be justified given this evidence only supports a higher determination.
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