P.E.B. rated me 0% - V.A. rated me 40%

ikory

ikory

PEB Forum Regular Member
PEB Forum Veteran
I just found out this weekend I can challenge my rating. My DD214 states disability existed prior to service because Navy doctors found a nerve disease(HNPP). I left the marines unable to lift my arms above my head and could barely countrol my fingers.

I got a V.A. physical 3 months before discharged and once discharged the V.A. rated me at 40% service connected because of nerve damage in both arms.

I had no Idea I had a nerve disease when I joined the Marines and was discharged with a lot of nerve damage.

Has anyone else had something similiar with a disease they found? Part of me thinks I am wasting my time but part of me feels it is an injustice to discharge me, telling me that my injuries occurred prior to service.

I will be mailing my claim to the PDBR first thing in the morning.
 
ikory said:
I just found out this weekend I can challenge my rating. My DD214 states disability existed prior to service because Navy doctors found a nerve disease(HNPP). I left the marines unable to lift my arms above my head and could barely countrol my fingers.

I got a V.A. physical 3 months before discharged and once discharged the V.A. rated me at 40% service connected because of nerve damage in both arms.

I had no Idea I had a nerve disease when I joined the Marines and was discharged with a lot of nerve damage.

Has anyone else had something similiar with a disease they found? Part of me thinks I am wasting my time but part of me feels it is an injustice to discharge me, telling me that my injuries occurred prior to service.

I will be mailing my claim to the PDBR first thing in the morning.
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I tend to think you have to apply to BCNR, not PDBR. In order to determine this, I would look at your DD214 and see what basis/authority they list for the separation. If it was due to 10 USC Chapter 61, it appears that you might qualify for PDBR. But, I suspect BCNR is where you have to file.

The other issue/possibility is that you could look at your situation as a wrongful discharge. Depending on the facts, it may make sense to pursue that claim as well.
 
Jason said:
I tend to think you have to apply to BCNR, not PDBR. In order to determine this, I would look at your DD214 and see what basis/authority they list for the separation. If it was due to 10 USC Chapter 61, it appears that you might qualify for PDBR. But, I suspect BCNR is where you have to file.

The other issue/possibility is that you could look at your situation as a wrongful discharge. Depending on the facts, it may make sense to pursue that claim as well.
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Hey Jason thank you for the reply. The authority of the discharge was Disability "existing prior to service" - 8404. and Separation CODE jfm1. I assume if I went through a P.E.B. and they determined 0% PDBR is where I should send it.

Can the BCNR change my DD214 if they see injustice? can they change my military rating to retire me?
 
Well I found lots of great proof including my company commander agreeing that injuries incurred in the line of duty. Yet the P.E.B. deterimed that because blood work found HNPP that it was the cause of injuries not active duty. If I only knew what the policy of pre-existing conditions are I would have a better idea if I have a chance. If I never entered the Marines I am pretty confident I would be a normal healthy person with no clue I even had HNPP.

I still could not find any information if BCNR can increase rating or retire someone?
 
Just to clarify - I believe Jason is referring to BCMR (Board of Corrections for Military Records). When submitting a request for BCMR, you will need to type up a letter and include all documentation supporting your claim for injustice (up to 25 pages I believe).

IMO - if the military let you in with a pre-existing condition, they must have considered it to be low risk. While you were serving, if the condition became unfitting, you should have an argument stating the pre-existing condition was aggravated from military service.

Good Luck!
 
When were you discharged?

A PDBR review requires a PEB rating. If the PEB stated you were EPTS, then you did not receive a PEB 0% rating but rather a “no rating”. As such you are not eligible for a PDBR review as that requires a 0%, 0% or 20% PEB rating.

However, you can ask for a review under the Disability Review Board process under 10 USC 1554 (below). Just this year, the law was changed and enlisted can apply for the disability review board which specifically addresses cases for those discharged for disability without disability compensation, which EPTS cases are.
The good thing about the disability review board is that it is an actual board and they must address the issues you raise. The BCNR rarely grants in person boards. Plus if you don’t like the results of the disability review board you can take the issue to the BCNR but you cannot go to the disability review board if you go to the BCNR first.

You also have to be aware of the six year statute of limitation for taking the issue to federal court. If you are near that deadline, contact Jason for a way to preserve you ability to go to federal court if the administrative board results are unfavorable.

The law was changed in late 2008 requiring PEB EPTS determinations to overcome the presumption of service connection and service aggravation with clear and unmistakable evidence if the condition was not noted on your entry physical.

Mike

10 USC 1554. REVIEW OF RETIREMENT OR SEPARATION WITHOUT PAY FOR PHYSICAL DISABILITY

(a) The Secretary concerned shall from time to time establish boards of review, each consisting of five commissioned officers, two of whom shall be selected from officers of the Army Medical Corps, officers of the Navy Medical Corps, Air Force officers designated as medical officers, or officers of the Public Health Service, as the case may be, to review, upon the request of a member or former member of the uniformed services retired or released from active duty without pay for physical disability, the findings and decisions of the retiring board, board of medical survey, or disposition board in the member’s case. A request for review must be made within 15 years after the date of the retirement or separation.
(b) A board established under this section has the same powers as the board whose findings and decision are being reviewed. The findings of the board shall be sent to the Secretary concerned, who shall submit them to the President for approval.

(c) A review by a board established under this section shall be based upon the records of the armed forces concerned and such other evidence as may be presented to the board. A witness may present evidence to the board in person or by affidavit. A person who requests a review under this section may appear before the board in person or by counsel or an accredited representative of an organization recognized by the Secretary of Veterans Affairs under chapter 59 of title 38.
 
maparker said:
When were you discharged?

A PDBR review requires a PEB rating. If the PEB stated you were EPTS, then you did not receive a PEB 0% rating but rather a “no rating”. As such you are not eligible for a PDBR review as that requires a 0%, 0% or 20% PEB rating.

However, you can ask for a review under the Disability Review Board process under 10 USC 1554 (below). Just this year, the law was changed and enlisted can apply for the disability review board which specifically addresses cases for those discharged for disability without disability compensation, which EPTS cases are.
The good thing about the disability review board is that it is an actual board and they must address the issues you raise. The BCNR rarely grants in person boards. Plus if you don’t like the results of the disability review board you can take the issue to the BCNR but you cannot go to the disability review board if you go to the BCNR first.

You also have to be aware of the six year statute of limitation for taking the issue to federal court. If you are near that deadline, contact Jason for a way to preserve you ability to go to federal court if the administrative board results are unfavorable.

The law was changed in late 2008 requiring PEB EPTS determinations to overcome the presumption of service connection and service aggravation with clear and unmistakable evidence if the condition was not noted on your entry physical.

Mike

10 USC 1554. REVIEW OF RETIREMENT OR SEPARATION WITHOUT PAY FOR PHYSICAL DISABILITY

(a) The Secretary concerned shall from time to time establish boards of review, each consisting of five commissioned officers, two of whom shall be selected from officers of the Army Medical Corps, officers of the Navy Medical Corps, Air Force officers designated as medical officers, or officers of the Public Health Service, as the case may be, to review, upon the request of a member or former member of the uniformed services retired or released from active duty without pay for physical disability, the findings and decisions of the retiring board, board of medical survey, or disposition board in the member’s case. A request for review must be made within 15 years after the date of the retirement or separation.
(b) A board established under this section has the same powers as the board whose findings and decision are being reviewed. The findings of the board shall be sent to the Secretary concerned, who shall submit them to the President for approval.

(c) A review by a board established under this section shall be based upon the records of the armed forces concerned and such other evidence as may be presented to the board. A witness may present evidence to the board in person or by affidavit. A person who requests a review under this section may appear before the board in person or by counsel or an accredited representative of an organization recognized by the Secretary of Veterans Affairs under chapter 59 of title 38.
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Mike what you are saying seems very good. I am searching for links to where I would apply and more information and I and not turning up that much. But I will keep searching, if you know links to where I should apply please let me know.

Thank you

Edit: I was discharged Dec 31 2003 so I am passed 6 years.
 
Hey Mike,

Okay I might be confused what I should be doing. All my reading I am coming up with is saying apply for PDBR and on the form its authority says 10 USC 1554.

"However, you can ask for a review under the Disability Review Board process under 10 USC 1554"

So are you trying to say the law has changed in 2008 and the PDBR will review my case because of 10 USC 1554?
 
No. The PDBR and the Disability Review Board are two different animals. Indeed the Services do not advertise these boards very much but you will see it discussed in SECNAVINST 1850.4e.

Mike
 
maparker said:
No. The PDBR and the Disability Review Board are two different animals. Indeed the Services do not advertise these boards very much but you will see it discussed in SECNAVINST 1850.4e.

Mike
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Mike, I can find the manual to SECNAVINST 1850.4E but can you help me out anymore than that? I do not see anywhere to apply, any forms to fill out, and rules to see if I qualify. I see a lot of talk about PEB mostly.
 
Enclosure 7 of SECNAVINST 1850.4e addresses the Disability Review Board. While it speaks of it terms of officers, again the law (10 USC 1554) has been changed to allow enlisted Disability Review Boards as well.

CORB Home

Here is the website for the Navy Council of Review Boards (CORB). Note that they don’t have a link for the Disability Review Board. Again, this board is not well advertised by the Services and thus rarely used so you may have to push the issue. At the bottom of the website is the contact address and phone number for the CORB. I called the CORB and they stated that you can apply by sending a letter to the CORB requesting the board. Interestingly, the person I talked to stated they have never done such a board. This goes to my earlier point that out of sight is out of mind and the Services have done a masterful job of keeping the Disability Review Board out of sight. I had an Army officer apply for one in 2007. The Army Review Board Agency was caught flat footed having no recent memory of every doing such a board. This year I had an AF enlisted member apply and the AF Review Board Agency has him on hold trying to figure out how to run such a board.

Mike
 
maparker said:
Enclosure 7 of SECNAVINST 1850.4e addresses the Disability Review Board. While it speaks of it terms of officers, again the law (10 USC 1554) has been changed to allow enlisted Disability Review Boards as well.

CORB Home

Here is the website for the Navy Council of Review Boards (CORB). Note that they don’t have a link for the Disability Review Board. Again, this board is not well advertised by the Services and thus rarely used so you may have to push the issue. At the bottom of the website is the contact address and phone number for the CORB. I called the CORB and they stated that you can apply by sending a letter to the CORB requesting the board. Interestingly, the person I talked to stated they have never done such a board. This goes to my earlier point that out of sight is out of mind and the Services have done a masterful job of keeping the Disability Review Board out of sight. I had an Army officer apply for one in 2007. The Army Review Board Agency was caught flat footed having no recent memory of every doing such a board. This year I had an AF enlisted member apply and the AF Review Board Agency has him on hold trying to figure out how to run such a board.

Mike
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Mike thank you very much. I will call them in a little bit just to see what they tell me. Should I be looking at getting a lawyer? I will try to write the letter tonight.

Edit: Well I called(202-685-6420) the woman told me if I have been discharge to call the Veterans Affairs. after I said I am pretty sure she is wrong because of 10 USC 1554. She gave me another number(202-685-6408)but she was not sure who I should talk too. I called the number it went to someones voice mail.
 
When I called they put me through to the CORB legal staff. To start the process, write them a letter requesting a Disability Review Board under 10 USC 1554. There are VSOs that will represent you for free. I will be glad to take a look at your letter before you send it.

Mike
 
Thank you Mike :). Amazing help. Yeah that would be great if you look at the letter. I am not sure if I should keep it very basic or make it extremely detailed why I am requesting the board. But I will try to write the letter tonight.
 
Okay I have edited this letter many times this seems like final draft. I went up to my local DAV who was contacting washington office to see if they will represent me. I talked to navy today, and he did confirm nobody uses this board. (its a secret)


Council of Review Boards

720 Kennon Street SE

Suite 309

Washington Navy Yard, DC 20374

October 25, 2011



To whom it may concernat CORB,

I am requesting a Disability Review Board under 10 USC 1554. I was discharged from the United States Marine Corps on December 31, 2003 after the P.E.B. determined that my Disability Existed Prior to Service (EPTS). The P.E.B. decision giving me an EPTS was due to blood work discovering a disease (HNPP) for which I had no previous knowledge of before entering the United States Marine Corps. The P.E.B. decision concluded that “The disability was not service aggravated.” I feel the P.E.B. decision is an injustice. Two months before my discharge, the Veterans Affairs gave a physical and reviewed the Medical Board Evaluation. TheVeterans Affairs determined my injuries to be service connected with a ratingof 40 percent. I left the Marine Corps with severe to moderate nerve damage in both arms that incurred on active duty. I have a signature from my company officer and medical representative stating that the “injury incurred in the line of duty.” The Medical Board Evaluation also states that my injuries incurred after using a backpack and rifle sling. The Marine Corps is notorious for its vigorous training. With that said, if I never entered the Marine Corps I would not have incurred this nerve damage in civilian life.

Sincerely,






 
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