PDBR or not?

D

dtomlinson

PEB Forum Regular Member
Ok,

I know I have posted here before and I may have asked similar questions but I just wanted to sum everything up and see if anyone else out there was in a similar situation and has filed? Was the outcome worth the headache?

I was discharged in Aug 2006 because of what I thought at the time was because of the instability of my knee and knee pain. I have had two complete ACL Replacements and the comlpete removal of my meniscus. What I found after really looking was that the Army rated my knee using code 5003 at 0%(Analogous to degenerative arthritis without loss of joint motion). Pain, not instability is unfitting acording to them. I also discovered that they really should have used code 5257 (recurrent subluxation or lateral instability Slight-10, Mod-20 and Sev-30), and code 5259 (Cartilage , Semiluna, Removal of, Symptomatic minimum 10% added not combined). I dont understand how instability is not considered unfitting? I was required to wear a knee brace when doing anythig active or walking on uneven ground. Everything else the PEB found not unfitting, Sleep Apnea, Major Depression, SLAP Tear right shoulder, Plantar Facitis....dont think I have a fight with them but with my knee I think there my be some hope for a 30% retirement compared to 0%....
 
Did the VA rate your knee and other conditions? If so, what were the ratings and what is the effective date of the ratings as compared to when you left service?

Mike
 
The VA rated my knee at 0 as well...sleep apnea 50...major depression 30.....the only rated my knee...I think the va simply mirrored what the
Army did...I did not know at the time that they really used the wrong codes and did not use all that was supossed to use
 
If your other conditions were listed on your DA 3947 or your DA 199 (as not unfitting), then the PDBR can address all conditions. You can argue the other conditons contributed to unfitness as well. It sounds like your knee was rated under the Army's pain policy which makes the rating noncompliant with the required VASRD requirement. The VA rating the knee at 0% is problematic so clearly demonstrate that both the Army and the VA screwed up the knee rating. Suggest you review VBA cases similar to yours to see if you can find decisions that back your position. Board of Veterans' Appeals Decisions Search

Mike


Mike
 
One thing to keep in mind, you have a six year statute of limitations to challenge the Army's actions in court. The time is not tolled by application to administrative boards.

I am somewhat ambivalent about which board is better to appeal to if you have the option- BCMR or PDBR. However, keep in mind that if you go to an administrative board before going to court, you have to raise any issues before the board or you won't be allowed to raise those issues later. So, to round out the discussion, if you have other issues than just rating, you may want to consider BCMR because it has power to deal with more issues. If your only issue is rating, that makes PDBR a more viable choice.

Keep in mind statute of limitations and remember, you can go to court prior to going to PDBR/BCMR if you have had a PEB before discharge.
 
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