Too Late?

stanggolfer

Registered Member
#1
Not sure if it's too late but here's a basic breakdown of my situation: active duty Air Force e-6 in 10 years. I had lung cancer and got a left lower lobectomy over a year ago. It was deemed stage 2. Since then I've had many issues with cramping and shortness of breath.
My MEB started at the end of 2017. I filed with VA in Jan of 2018.
I had an appointment with my pcm 19 April and she said based on my pft and other issues that I have asthma. I'm Now using a daily inhaler (Flovent) and rescue inhaler (albuterol).
My IPEB decision came back on 27 April. They deemed my cancer unfitting, high probability of recurrence, 50% chance of 10 year survival, incurred while active duty, LOD, 0% discharge with severance pay.
I chose to do the formal peb. Figured since I use the inhalers for my mild uncomplicated asthma I could see if my rating could be increased to 30%. I had an attorney appointed by the OAC and he seemed helpful. But then he had too many hearing and my case was sent to another attorney. The new attorney sent me e-mail which said I had helpful paperwork and my medical records had good info that I needed to appear at Randolph to testify.
I went to Randolph 23 May. I met with the attorney and he barely talked to me for 20 minutes. Said the opposite of what he did in the email, that nothing would help me and not to testify.
On 24 May I showed up almost 45 minutes early to try and discuss options with my attorney. He wouldn't come and speak with me until my actual hearing time. Hearing lasted 2.5 minutes and I knew I didn't haves chance. He was happy with it and we went back to his office. I asked him what's next and could he send me an email. He asked if I was serious and said he wasn't going to hold my hand. Find it funny he said that since I never spoke with him except by email and while I was there I seen him for an hour total.
When I got to work after the Memorial Day weekend I saw his email. He knew he set me up for failure because it said I would appeal the decision but later decline and do a VA recon. I got the results from my PEBLO the next day and sure enough there was no change for my cancer and nothing for asthma.
Am I screwed, any suggestions are greatly appreciated.
 

Matt Kozyra

PEB Forum Veteran
Registered Member
#2
TSgt,

Dang, that sounds awful. So, I can't give legal advice specific to your case, but I can talk about the general process and the options that a person at your stage in the proceedings has. On that, there's good news and bad news. The bad news is that you've already blown through almost all of your chances to get a new result. The good news is that you've got two left.

After the Formal Board, Airmen have the ability to file an appeal with the SAFPC (Secretary of the Air Force Personnel Counsel). This takes place before you leave Active Duty, and a win at the SAFPC level can get your separation with severance upgraded to a retirement. I've got a basic explanation of the process here: https://www.kozyralaw.com/services/physical-evaluation-boards/air-force-peb-process/. It's not another hearing - it's a letter that goes to the Board's bosses and argues that the Board made some sort of a mistake, either by weighing the evidence wrong or by disregarding some of your rights, or something of that nature. Ineffective assistance of counsel ("my lawyer was unforgivably terrible") is an argument that Airmen are entitled to make here, though that's not always an effective strategy for a variety of reasons.

If you lose that, you have the ability to appeal to the BCMR (Board for the Correction of Military Records). This one's a worse appeal than the SAFPC one, both because it's much harder to get a good decision and because it takes forever to get results back. You end up getting separated and then having to petition BCMR to change your separation to a retirement after (often years after) your discharge.

So, obviously, better to win it at the SECAFP level than to rely on BCMR. Your OAC attorney is supposed to write that appeal for you, but obviously you've got some trust issues there. You can give him one more chance, or you can write the appeal yourself, or you can look into hiring a civilian attorney just for the appeal. Whatever you decide, know that you have a SUPER short fuse to make it happen. You get 15 calendar days from the date you received your results back. So, if you got them on the Tuesday after Memorial Day, your clock runs out on the 13th (Wednesday after next). You can petition for an extension if you need one, but those aren't automatically granted.

One other thing to consider is whether it's better to win this appeal or to lose it. For almost everyone, it's better to have retirement than severance. That's in large part because most people have to pay their severance checks back to the VA. You get a check for two months of base pay for every year that you served, but then a chunk of your VA pay gets deducted every month until that whole amount has been recouped.

That's most people. It's not applicable to people with a DoD disability rating of 0% though. There's a trick to how the applicable law (10 USC 1212) is written. The VA deducts money from any disability compensation you're receiving for the same disability. If you have a 0% rating for your Unfitting condition, then you aren't receiving any compensation "for the same disability," and there's nothing to deduct. So you end up with a lump sum, tax-free check in the amount of 2 months' base pay for every year of service, and unlike most people, you never have to pay it back. Over the long run, TRICARE benefits will almost certainly be more valuable than that check. But some people really need some seed money to get them set up for civilian life, and that severance check is a good option. Something to consider.

Matt
 

FTP

Registered Member
#3
Hire Jason Perry the founder of this website. He is the absolute best attorney the OAC is a shit show. Remember the old saying you get what you pay for. I had a lung issue not as severe as yours and Mr. Perry got me my 30% which is huge for retirement benefits.

Respectfully,

Combat Carl
 

stanggolfer

Registered Member
#4
TSgt,

Dang, that sounds awful. So, I can't give legal advice specific to your case, but I can talk about the general process and the options that a person at your stage in the proceedings has. On that, there's good news and bad news. The bad news is that you've already blown through almost all of your chances to get a new result. The good news is that you've got two left.

After the Formal Board, Airmen have the ability to file an appeal with the SAFPC (Secretary of the Air Force Personnel Counsel). This takes place before you leave Active Duty, and a win at the SAFPC level can get your separation with severance upgraded to a retirement. I've got a basic explanation of the process here: https://www.kozyralaw.com/services/physical-evaluation-boards/air-force-peb-process/. It's not another hearing - it's a letter that goes to the Board's bosses and argues that the Board made some sort of a mistake, either by weighing the evidence wrong or by disregarding some of your rights, or something of that nature. Ineffective assistance of counsel ("my lawyer was unforgivably terrible") is an argument that Airmen are entitled to make here, though that's not always an effective strategy for a variety of reasons.

If you lose that, you have the ability to appeal to the BCMR (Board for the Correction of Military Records). This one's a worse appeal than the SAFPC one, both because it's much harder to get a good decision and because it takes forever to get results back. You end up getting separated and then having to petition BCMR to change your separation to a retirement after (often years after) your discharge.

So, obviously, better to win it at the SECAFP level than to rely on BCMR. Your OAC attorney is supposed to write that appeal for you, but obviously you've got some trust issues there. You can give him one more chance, or you can write the appeal yourself, or you can look into hiring a civilian attorney just for the appeal. Whatever you decide, know that you have a SUPER short fuse to make it happen. You get 15 calendar days from the date you received your results back. So, if you got them on the Tuesday after Memorial Day, your clock runs out on the 13th (Wednesday after next). You can petition for an extension if you need one, but those aren't automatically granted.

One other thing to consider is whether it's better to win this appeal or to lose it. For almost everyone, it's better to have retirement than severance. That's in large part because most people have to pay their severance checks back to the VA. You get a check for two months of base pay for every year that you served, but then a chunk of your VA pay gets deducted every month until that whole amount has been recouped.

That's most people. It's not applicable to people with a DoD disability rating of 0% though. There's a trick to how the applicable law (10 USC 1212) is written. The VA deducts money from any disability compensation you're receiving for the same disability. If you have a 0% rating for your Unfitting condition, then you aren't receiving any compensation "for the same disability," and there's nothing to deduct. So you end up with a lump sum, tax-free check in the amount of 2 months' base pay for every year of service, and unlike most people, you never have to pay it back. Over the long run, TRICARE benefits will almost certainly be more valuable than that check. But some people really need some seed money to get them set up for civilian life, and that severance check is a good option. Something to consider.

Matt
Definitely my biggest concern is getting Tricare. I'm not trying to get a huge percentage, just the 30% would make me happy.
 

stanggolfer

Registered Member
#5
Hire Jason Perry the founder of this website. He is the absolute best attorney the OAC is a shit show. Remember the old saying you get what you pay for. I had a lung issue not as severe as yours and Mr. Perry got me my 30% which is huge for retirement benefits.

Respectfully,

Combat Carl
I thought I was lucky at first, but after the OAC attorney switch I knew that he wasn't there for me since he gets paid win or lose. Your right about getting what you pay for and though it would've hurt now been worth it in the long run if I got the Tricare. It was just difficult to pay that much money with no guarantee.
 

FTP

Registered Member
#6
There is no attorney that will guarantee you anything. I will guarantee you this Mr. Perry will not quit until your satisfied he even told me if I was not happy with the 30% he would continue the fight but I was satisfied. The fee to retain him is a lot of money but in the end it is worth it hands down. The way I see it is one year of Tri- Care alone makes up his costs as you know if you bought health insurance out of pocket it would be at least a 1,000 a month. I now get it practically free for the rest of my life. Ultimately it is your decision to make I am just telling you from my personal experience of hiring Jason Perry that his is worth it.
 
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