How much weight does a PEB decision have with VA? in VA Disability Claims (General) Forum

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How much weight does a PEB decision have with VA?

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havet	How much weight does a PEB decision have with VA?		Lead	[-]
Posts: 10 Jul 8 11 9:57 PM	Tags : ptsd, compensation, peb Hi, All, Yet another longtime lurker with a question for the experts here... I spent 5 years on TDRL with a 40% rating (way lowballed, but didn't appeal it because needed to leave AD for health reasons) then just recently got placed on PDRL with a 100% combined (perhaps extraschedular?) rating for my two conditions (migraine headaches and PTSD) due to total unemployability. This increased rating was not due to any change in my condition or appeal on my part, just a new rating on my last TDRL review. I also have a recent decision from Social Security awarding me disability benefits for same those two conditions. I am running to the end of my one year to file my formal claim after making an informal one ten months ago. I have the main form filled out and my packet almost all together -- a one-page summary letter detailing the service connection and extent of each disability and referencing the specific pages in my packet where the key facts and evidence can be found, my initial and final PEB packets including stressor letter, buddy letter, award letters, commander's statement, and the Narrative Summaries from neurologists and psychiatrists stating their review of my file and conclusions that both conditions are not EPTS, are service-connected (and combat-connected), are stable for rating purposes, and prevent me from being employable. All told, there are probably 80 pages in my packet. Should I keep it to this (or even pull out some of that stuff), or should I add in my medical records (more than 2000 pages by this point). The VA keeps saying to send in everything in their instructions, but it seems like the PEB has all the medical evidence summarized nicely, and I don't want to drown the rater with paperwork. So...how much weight does a RO place on PEB Narsums and findings? Is submitting that stuff helpful, sufficient, and/or necessary? Should I expect C&P exams despite the recent (within 1 year) TDRL exams by Walter Reed specialists? Is the RO likely to follow closely what the PEB decided or not care less? Thanks in advance for any and all guidance. My feelings will not be hurt by any criticism of my approach/methods/tone.
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The Old Medic		#1	[url]	[-]
Posts: 6039 Jul 9 11 11:11 AM	The combination of the PEB, and of the Social Security decision (make certain you include the Social Security Award Letter in your packet if it is based on those same conditions). Get that application in NOW, don't worry about the support. If you go one day beyond that one year, you WILL lose out on benefits. You can submit the backup material later. Submit your application "On-Line", and then send in the supporting material. You do NOT want to take a chance on going past that 1 year deadline! US Army 1959-1969; Germany 1960-63; Medic 1964-69 SFC E-7 MOS: 55G10 (60-63) , 91B40, 91C40, 91F40 (64-69) Registered Nurse, 1968-2005 (Licensed, not practicing after 1975) Ed.D in Rehabilitation Counseling, Certified Rehabilitation Counselor Retired, Licensed Clinical Psychologist, Independent Social Security Contract Vocational Expert 1983-2005, Contract Medical Expert 1987-2005 60% Service Connected Disabled; Life Member of the DAV since 1980
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havet		#2	[url]	[-]
Posts: 10 Jul 10 11 9:08 PM	Old Medic, Thanks for the advice. I took it and stopped stalling -- submitted the application I've been sitting on with VONAPP. I'm planning to mail off the packet of stuff in the AM. It's kind of sad it took 5 years to get my nerve to apply, but the bright side is I have a much stronger packet now with the final PEB and SS decisions.
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dally7777		#3	[url]	[-]
Posts: 3222 Jul 11 11 2:47 AM	Havet; MEB/PEB proceedings are not medical records. They are a summary of medical records; NARSUM/Dictation included. Submit the claim and they will request your military medical records. If you received treatment from an MTF while on TDRL you will need to specify that on your application or else the VA can't request them. Any treatment on TDRL will NOT be included in your Mil Treatmemt records because you were retired not active duty.
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dally7777		#4	[url]	[-]
Posts: 3222 Jul 11 11 2:52 AM	Also DOD does not give extra schedular ratings or Individual Unemployability. If you received 100% PDRL for a mental health diagnosis then it was determined you had "Total Occupational & Social impairment" which meets the criteria for a 100% rating. Once you receive a VA rating your DOD retirement will be offset by the VA award. You can apply for CRSC if you qualify and receive retirement based on Active years of service instead of disability percentage.
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havet		#5	[url]	[-]
Posts: 10 Jul 11 11 10:50 AM	dally7777, That was also my thought (not giving IU or extra-schedular), but here's the direct quote from my PEB proceedings: Individual unemployability based on the combined impact of PTSD and migraines. Rated 100% IAW VASRD 4.16 because these two conditions render soldier unemployable....[description of severity of PTSD and that migraines alone would be 50% rating]...This one rating includes consideration of both conditions. This was a "reconsideration" done, unasked for by me, after the USAPDA "reviewed your entire case", according to the memo attached to it, which turned up about two months after my previous PEB, which I concurred with, rated me at 80% (50+50). It was quite extraordinary and seemed to shock the PEBLO, as well.
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71infantry		#6	[url]	[-]
Posts: 4990 Jul 11 11 11:06 AM	I guess how might weight a PEB carries depends on the claim. In my case I was medically retired for asthma and the va denied my initial claim. It took three years a CUE claim and a copy of my Medical and Physical evaluation board procedings before the VA granted CUE and awarded all benefits back to the date of my retirement.
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dally7777		#7	[url]	[-]
Posts: 3222 Jul 11 11 1:02 PM	Havet, I am placing a link to pebforum where Jason- the administrator & PEB attorney - has been looking for cases where IU was awarded during the PEB. You don't have to post over there; but it would help him better help those currently going through the process. http://www.pebforum.com/f10/arguing-tdiu-peb-8942/ You are the first person I have seen be awarded IU from the PEB and I've been doing this awhile.
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dally7777		#8	[url]	[-]
Posts: 3222 Jul 11 11 2:49 PM	http://www.pebforum.com/f10/arguing-tdiu-peb-8942/
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71infantry		#9	[url]	[-]
Posts: 4990 Jul 11 11 6:19 PM	dally7777 wrote: Havet, I am placing a link to pebforum where Jason- the administrator & PEB attorney - has been looking for cases where IU was awarded during the PEB. You don't have to post over there; but it would help him better help those currently going through the process. http://www.pebforum.com/f10/arguing-tdiu-peb-8942/ You are the first person I have seen be awarded IU from the PEB and I've been doing this awhile. I am willing to bet that the PEB did not grant IU, if anything they granted a 100% rating. It is my understanding PEB's only grants disability based on a percentage., using the same guides as the va. And we all know that IU is not an actual rating.
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havet		#10	[url]	[-]
Posts: 10 Jul 11 11 8:21 PM	I am willing to bet that the PEB did not grant IU, if anything they granted a 100% rating. It is my understanding PEB's only grants disability based on a percentage., using the same guides as the va. And we all know that IU is not an actual rating. 71Infantry, Hey, I quoted my PEB right up above. It clearly says IU. Please don't call me either a moron or a liar. dally7777, I'm not seeing the link, but I'm happy to share with anyone who needs info. I can even scan a redacted copy of my PEB findings for him if necessary. It definitely surprised me, too, since I'm aware it's an unusual finding. The whole case has been unusual, though, ever since I non-concurred on an earlier TDRL review, saying my migraines fit the 50% rating rather than 30%. I got a denial letter back saying that due to an "administrative change", the PEB was inserting the word "not" before the phrase "prostrating" in the text of my PEB, thus making the description fit the 30% text. They said they were correcting a typo and there was no further appeal available. I'm pretty sure inserting "not" is not just fixing a typo, but whatever, I figured that was that and prepared to get my final retirement orders. Another six months pass before I'm told my case is getting pulled for Quality Assurance processing, whatever the heck that is, and then it comes back upgraded to 80% total (50+50). Okay. Then another two months or so pass before I get a letter out of the blue stating the USAPDA reviewed my entire case due to that earlier "adminstrative change" thing and giving me the new combined 100% rating. Three weeks later, I had orders. Go figure. Edited 1 time by havet Jul 11 11 8:36 PM.
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dally7777		#11	[url]	[-]
Posts: 3222 Jul 11 11 11:14 PM	For some reason my link won't post and I tried it twice. Go to www.pebforum.com Search for "Arguing TDIU at PEB" and you should find the thread. There have been only about 70 instances that DOD awarded IU so while very rare it does happen. Like I said earlier4 in 8 years here you are the first I have seen.
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71infantry		#12	[url]	[-]
Posts: 4990 Jul 12 11 12:26 AM	havet wrote: I am willing to bet that the PEB did not grant IU, if anything they granted a 100% rating. It is my understanding PEB's only grants disability based on a percentage., using the same guides as the va. And we all know that IU is not an actual rating. 71Infantry, Hey, I quoted my PEB right up above. It clearly says IU. Please don't call me either a moron or a liar. Where did I call you a moron or a liar...please don't over react .. And I stand by what I said especially now that you have expanded on what your talking about below. Another six months pass before I'm told my case is getting pulled for Quality Assurance processing, whatever the heck that is, and then it comes back upgraded to 80% total (50+50). Okay. Then another two months or so pass before I get a letter out of the blue stating the USAPDA reviewed my entire case due to that earlier "adminstrative change" thing and giving me the new combined 100% rating. Three weeks later, I had orders. Go figure. You can't have a combined 100% rating and be TDIU at the same time.... Now it is possible that someone said you cannot work... that doesn't mean you are unemployable in the sense of being awarded IU. In fact when I re- read you initially post you clearly stated that you were awarded 100% and place on the PDRL. So it seems your talking apples and oranges..... The law is the law. In addition the military does not grant unemployability.. they grant disability. And the only time the va grants IU is when a veteran cannot be rated 100% yet is unable to work because of service connected issues. Further you asked how much weight does the PED have on the VA decision.. and I answered that above. Unless the laws have changed since I retired and since the va and military use the same rating guide you will likely be rated 100% by the VA. So as I said I did not call you any names but just because someone says you can't work doesn't mean you were awarded unemployability.
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71infantry		#13	[url]	[-]
Posts: 4990 Jul 12 11 12:30 AM	dally7777 wrote: For some reason my link won't post and I tried it twice. Go to www.pebforum.com Search for "Arguing TDIU at PEB" and you should find the thread. There have been only about 70 instances that DOD awarded IU so while very rare it does happen. Like I said earlier4 in 8 years here you are the first I have seen. I've never seen it and I hve been dealing with veteran disability for 25 years.. that doesn't mean it doesn't happen..(. but I don't think it does ) however he can't be rated 100% on the PDRL and IU at the same time.
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havet		#14	[url]	[-]
Posts: 10 Jul 12 11 4:48 AM	Since this seems to be a point of contention, 71infantry, I'll copy below the quote from my PEB findings: Individual unemployability based on the combined impact of PTSD and migraines. Rated 100% IAW VASRD 4.16 because these two conditions render soldier unemployable....[description of severity of PTSD and that migraines alone would be 50% rating]...This one rating includes consideration of both conditions. As you can see, the specific phrase is "individual unemployability". Furthermore, the 100% rating is in accordance with VASRD 4.16, which just happens to be the paragraph that covers awards of individual unemployability. Edited to remove unnecessary snark. Edited 1 time by havet Jul 12 11 12:58 PM.
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JADMP		#15	[url]	[-]
Posts: 414 Jul 13 11 1:21 AM	Hi folks! It's been awhile since I have been back here but appreciate the update on this issue. Yes, it is extremely rare to see the military grant an "IU" 100% rating. I have frankly never seen it. But the military regulations provide for it (so, in some cases I argue it) and, now that the VA Schedule (clearly 38 CFR Part 4, but perhaps more) is binding on the military departments, it should be awarded more often. As far as the general issue of "binding effect" of military findings on the VA, I think it generally breaks down like this: 1) Legal facts (i.e., clearly legally dispositive statements of fact around things like dates of service, honorable characterization of service, and certain statuses- perhaps things like POW status) are binding on the VA. 2) Factual findings- Generally, I think these play out as evidence that the VA must consider and will generally be given deference. 3) Adjudicatory findings- again, I think these must be given consideration- but they are not binding. If this is of great interest, I can post a more detailed explanation with cites. I state the above with the caveat that I had researched this issue about a year ago and am going off my recollection. I may not be firing on all cylinders on the above analysis, but I think I am at least generally summarizing the situation. Thanks for posting this, both here and over at PEBForum (I saw that it didn't post originally....there is a moderation filter in place whenever someone links to another site, so it took me approving the posts earlier tonight to make the post "live.") Hope everyone is doing well and having success in fighting their VA battles. Jason "I am not providing legal advice, only information. An attorney client-relationship will only be formed by agreeing to such a relationship in writing. Consult a qualified attorney if you have questions." Physical Evaluation Board Forum
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JADMP		#16	[url]	[-]
Posts: 414 Jul 13 11 1:26 AM	dally7777 wrote: Also DOD does not give extra schedular ratings or Individual Unemployability. If you received 100% PDRL for a mental health diagnosis then it was determined you had "Total Occupational & Social impairment" which meets the criteria for a 100% rating. Once you receive a VA rating your DOD retirement will be offset by the VA award. You can apply for CRSC if you qualify and receive retirement based on Active years of service instead of disability percentage. Actually, they do.....but it is EXTREMELY rare. I have NEVER personally seen it done in practice (after a year as a JAG doing approximately 200 formal PEBs and since then being involved over the past 4 years in another approximately 300 cases), but on some appeals (most recently in a lawsuit I filed in the US Court of Federal Claims, on remand to the Board for Correction of Military Records, the Army acknowledged that they can award these ratings). I don't blame anyone for not knowing this "possible" outcome because for all intensive purposes, it never happens. The take away is that in some cases, it makes sense to argue for it because, if the case is right, on appeal it might be granted. See, e.g., AR 635-40, Appendix B-6 "Total disability ratings Total disability will be considered to exist when the Soldier’s impairment is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Accordingly, in cases in which the VASRD does not provide a 100 percent rating under the appropriate (or analogous) code, a Soldier may be assigned a disability rating of 100 percent if his impairment is sufficient to render it impossible for him or her to follow a substantially gainful occupation. When such an extra-schedule rating is proposed, review and approval must be obtained from USAPDA.." Note that the above does not comport with the requirements from the VASRD to have certain percentages awarded before considering TDIU. (Notably, I think that whichever is more advantageous to the member, service regulation or VASRD regulation, must be applied to the military member). Good luck, though, in getting the PEB to normally consider this. Sounds like havet got a dynamic and good PEB considering their case. Jason "I am not providing legal advice, only information. An attorney client-relationship will only be formed by agreeing to such a relationship in writing. Consult a qualified attorney if you have questions." Physical Evaluation Board Forum Edited 1 time by JADMP Jul 13 11 1:42 AM.
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71infantry		#17	[url]	[-]
Posts: 4990 Jul 13 11 1:55 AM	havet wrote: Since this seems to be a point of contention, 71infantry, I'll copy below the quote from my PEB findings: Individual unemployability based on the combined impact of PTSD and migraines. Rated 100% IAW VASRD 4.16 because these two conditions render soldier unemployable....[description of severity of PTSD and that migraines alone would be 50% rating]...This one rating includes consideration of both conditions. As you can see, the specific phrase is "individual unemployability". Furthermore, the 100% rating is in accordance with VASRD 4.16, which just happens to be the paragraph that covers awards of individual unemployability. Edited to remove unnecessary snark. Ok... At this point I am really sorry I responded, I didn't respond to give you a hard time , I was only saying that what you are saying does not make sense. This will be my last response because it just isn't accomplishing anything going back and forth like this, and I really don't care at this point... however ..... Are saying that you have a combined rating of 50%.... and were granted IU...by the Director, Compensation and Pension Service, for extra-schedular consideration ... Because based on your combined rating that is the only way you could have TDIU..... Based on the way you have worded your remarks at one point saying your rated 100% and at another point saying you were granted unemployability, and now a rating of 50% , I am not really sure if you even know what you are trying to say.... In addition if you are on the PDRL list, the military grants 30% or more, ( and perhaps I am wrong but not unemployability). Anyway Title 38 states: 4.16 Total disability ratings for compensation based on unemployability of the individual. top (a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. It further states: It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. I wish you the best of luck.... and hope the va grants what your looking for.
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havet		#18	[url]	[-]
Posts: 10 Jul 13 11 9:14 PM	Thank you for the good wishes, 71infantry. I don't wish to feud over the details, either -- I just want to avoid other people reading this perhaps not realizing that they CAN push for an IU rating from DOD. I think we can all agree that it's important for service members and vets to have as much accurate info as possible. So, I'll try one last time to clear the details up just in case it can help anyone else. My final TDRL reevaluation PEB came back originally as 50% for PTSD and 30% for migraines. I submitted an informal rebuttal saying my migraines more closely resembled the description for 50%, and I got a reply saying the PEB was adding a "not" before the phrase "prostrating" as an "administrative change", so my rebuttal was denied. Then my case supposedly got pulled for "quality assurance" processing and came back with 50% for PTSD and 50% for migraines about four months later. I was waiting for my retirement orders for a long time (a couple more months) when I got a memo saying the USAPDA had reviewed my entire case and decided to revise my rating. The PEB proceedings that I got at that point had the quote I gave above: Individual unemployability based on the combined impact of PTSD and migraines. Rated 100% IAW VASRD 4.16 because these two conditions render soldier unemployable...This one rating includes consideration of both conditions. VASRD 4.16 is the actual paragraph that VA uses to award IU; it has the requirements and details of what it entails listed. So, the 100% rating is clearly an IU rating for my two conditions combined. My schedular rating would have been 80% (50+50), but the USAPDA upgraded it to a 100% rating for individual unemployability. Just like VA pays IU at the 100% rate, DOD considers IU to be an extraschedular 100%. That is to say, even though by the VASRD ratings for my two disabilities I am only normally entitled to an 80% rating, they are awarding a 100% rating because those two conditions combined at their current severity make me unemployable. Now, it's really an academic distinction because retired pay is capped at 75% of your high three base pay, so the difference between 80% and 100% is moot as far as pay goes. The only difference that I see is that I was wondering if getting IU rated by DOD would make it more likely for VA to do so, as well. Best wishes to you, as well, 71infantry.
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havet		#19	[url]	[-]
Posts: 10 Jul 13 11 9:21 PM	Jason, are you trying to collect info on cases where DOD awarded IU, as old medic said? I'm happy to send more info if it would be of any help.
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JADMP		#20	[url]	[-]
Posts: 414 Jul 14 11 3:59 AM	Generally, yes, I am interested in the findings of the PEB (and the MEB, if available). There are several issues that are implicated, including the basis they use for awarding and what sort of evidence they considered in awarding the IU finding. I have several potential class actions claims in the works and this issue might be amenable for judicial review (i.e., I think the DoD does not consider this issue normally, so many member may be denied an appropriate IU finding). Jason "I am not providing legal advice, only information. An attorney client-relationship will only be formed by agreeing to such a relationship in writing. Consult a qualified attorney if you have questions." Physical Evaluation Board Forum
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