What Are My Rights?

[gineric12]

I am active duty Army, and have had 2 major back surgeries in the past 2 years. It is no secret that my Unit wants to get rid of me because I am filling a slot that someone who is able to deploy could fill. I have a very unique leadership structure because I am stationed at an Air Force Base. The person who has been appointed to "oversee" my medical situation is the Deputy Commander (an 0-5) and he has atleast held the false face of having my best interests in mind.

Recently, I was referred to a neurosurgeon for what everyone involved in my care viewed as a last chance to save my military career (prior to an MEB/PEB). The doctor told me (as expected) that there was no surgical solution to my problems. I have permanent nerve damage in one leg and STILL have back pain. He recommended that I see a pain management doctor to control my long term pain.

I give you this background so you can better understand what has become my problem. When I brought this info to the LTC, which he has required that I report status updates directly to him as tey occur, he said that he was going on leave for 2 weeks and I need to research it during that time and if no resolution was made HE would contact my doctor to initiate the MEB. I figured I was out of options and accepted this fate. I had already researched the MEB/PEB process. I was always a little "put off" by his need to contact my surgeon (an Army ortho guy, that I HAD a good relationship with). He has admitted on more than one occassion that I have always told him exactly the same story he got from my doc, so I wondered why he felt the need to discuss it with him and even emailed a lawyer I had doing some research for me about the legality of it all. Well, when he returned from his leave, we met, and he told me that on Friday (this was a Wed.) he was going to call the doc to initiate the MEB.

On Thursday, I had an appt. with a pain mgmt. doc who offered another surgical solution for my consideration. If successful it would alleviate 50% or more of my pain which I believe would make me "fit" and salvage my 15 year career. When I brought this to my LTC, he completely dismissed it, said my situation had gone on long enough and that he was initiating the board anyway. He plans to contact my doctor tomorrow to proceed with the board.

I have emailed/called the lawyer at JAG unsuccessfully everyday. I NEED to know what my rights are. Can he initiate a board against my will when there is a potential procedure to make me fit for duty? Can he discuss my case with my doctor? My doctor who had been VERY approachable over the past 2+ years is now mysteriously not answering my emailed requests for help, either. Does anyone have any assistance they can offer? Thanks in advance.

[john999]

Berta

I would not trust a military lawyer as far as I could throw one. I think they will tell you to take the "easy" way out but is it easy for them or for you? I had a former military lawyer who told me court martials were high class kangaroo courts.

[Guest rickb54]

I was medically retired over 20 years ago, maybe I am not qualified to make these statements because regulations have changed since my medical retirement.

However:

Your should be reviewed by a Pyhsical Evaluation Board prior to A Medical evaluation board.

The PEB will determine if you should be refered to the MEB.

This officer that is overseeing your condition is not a Doctor, and does not sit on a board, he has no legal right to advise the medical authorities to start boarding you out. In fact he really has no legal right to know the details of your medical condition, that is between you and the doctor.

If you are offered a medical discharge or retirement, know that to retire you must be awarded 30%, any lesser rating and you will be given severence pay, and when you go to the va for a rating you will have to pay back every penny of the severence pay, before the va will pay you compensation.

Also know that you do not have to accept the offer they make, you have final say, of course if you do not have any time left on your enlistment they could just bar you to reenlistment, and you would end up etsing...

If your in the states, I would seek the help of an attorney, JAG works for Uncle Sam. |

I have a back injury, I have faced the same decision you are facing, I ended up with 30% after 15 years and 2months service, I have always thought I was screwed I would have been happier if I had finished out my 20.

Do not let them screw you, if you do medical out make sure it is on your terms other wise fight the system as best as you can.

Edited September 7, 2006 by rickb54

[gineric12]

Rick,

It sounds like we have a lot in common. I will have 15 years in January. Actually, the MEB is before the PEB in the process. This much I know for sure through my research. And unfortunately, the Commander DOES have certain rights regarding ordering medical boards. According to AR 635-40, "When a commander believes that a Soldier of their command is unable to perform the duties of their office, grade, rank, or rating because of physical disability, the commander will refer the Soldier to the responsible MTF for

evaluation. The request for evaluation will be in writing and will state the commander’s reasons for believing that the Soldier is unable to perform his or her duties. DD Form 689 (Individual Sick Slip) may be used for such referral (AR 600–6)."

My problem is that the guy is NOT my Commander, although I know if I push this issue, he could justify it as acting on behalf of the CDR and I am taking a "pick your battles" stance as far is this is concerned. I know that he has also never formally (in writing as the reg states) requested the eval for a med. board. I also know that he has discussed my medical situation w/my doctor which based on my research and as you suggest, could be in violation of any number of federal laws/regs. (i.e. HIPAA, etc.). The problem I have there is that it would be his (and my doc's) word against mine as to what was discussed.

I have discussed the situation w/a lawyer from JAG and he has been helpful. The only problem is that he is 3 hours away and difficult to get a hold of. I am stationed on an AF base and am Army, and the AF legal folks have refused to see me. But, when I did visit JAG, they basically parroted what I have discussed here. That the Commander does have rights and that I am destined for a medical board. He just emphasized to me that as long as I am continuing to do things to improve my condition and if there is a reasonable expectation that my condition will improve to a point that I will be able to serve, the med board will basically put the brakes on my OICs overzealous attempt to get rid of me. I am just in disbelief about the process.

I don't understand how someone who isn't my CDR can suggest I be med boarded at 15 years of service when I can produce a statement from a doctor that says that if I have another surgery that there is a reasonable epectation that I will be able to return to duty (<---my lawyer suggested that I obtain this). Especially in today's climate when the military is spread so thin. It's hard enough to find qualified people to serve, and they are trying to get rid of someone who already has and is fighting for the right to continue to do so.

The lawyer from JAG doesn't think it will happen, I guess we will see.

But, before I close. My main concern at this point is my percentage that the PEB will assign for my disability. I know I need 30% in order to medically retire (vs. severance pay). I was wondering since you were disabled for a back injury if you could comment on my situation.

I had my spine fused at the L-5/S-1 vertabrae (w/hardware) and had a second surgery to revise the first because it never fused. The second surgery was deemed successful because it eventually fused, but during either one of the surgeries or because of the hardware, I have documented nerve damage in my left leg and I still have back pain/spasms. Now my surgeon's opinion, which has been backed up by the 2nd opinion of a neurosurgeon, is that their is no surgical solution for me. Any nerve damage that has occured would most likely be permanent by this stage of my recovery. My surgeon doesn't know enough about the spinal cord stimulator (suggested by my pain mgmt. doc) to comment or stop the med board.

Since you were medically retired at 30% for a back injury, I guess my question to you is how does that compare with your condition. I ask, because I was hoping to do some comparison to get an idea of where I might stand. I know it was 20 years ago and things have changed, but it wouldn't hurt to ask.

Thanks again to you and all of the wonderful people on this board for the help you have given me throughout this process.

[Guest jstacy]

I am not a Doctor but what I am going to tell you is the absolute truth. Once a Nerve root has been compromised and you have had surgury, you may lose some of the symptoms but you will not lose all. A Damaged nerve at the Spine is more than likely permanent. A neurosurgeon opinion outweighs a Pain Doctors. You can expect to keep the Numbness and Tingling ands weakness for Life. ALso the effects on future of the fusion is this. The Vertabrate below the one fused will eventually go because of the fusion.

It is like playing dominos. I hope all goes well for you. I would also hate to lose 15 years of service.

[Guest rickb54]

Gineric,

To answer your questions, I have had 2 surgerys as well. L3-L4,L4-L5, L5-S1 are fused. I also have siatic nerve damage, of the left leg, which resulted in drop foot. My surgerys did not help. I spend most of my time in a wheel chair now because of the pain.A nurosurgen said he could operate again to releive some of the pain he said there is a better chance the surgery will not help. The nerve damage is permanent and can never be fixed, it might not get worse with surgery but it will never be normal. I will never agree to another surgery. the va has rated me 60% for my back injury.. Hope this answers your question.

[sixthscents]

Generic,

Brother I feel for ya. I had a VERY similar case with my injury in 2000. Heres the deal, the MEB is SUPPOSED to follow AR 635-40 and 40-501 in rating you. They dont. You can file an appeal (either written or in person, the in person is held in Washington state). I filed the written, faxed it out, and had a denied response within 15 minutes (amazing huh?). Seriously, fifteen minutes. I watch soldiers at Ft Knox go to the board and have yet to see a decision changed. Even when they reccomended it, they are NOT the final authority, and the office in Wasington does not follow their suggestions.

Here's probably whats going to happen. Eventually your commander will get his shit in one sock, and file the Commander's request for MEB. Since they changed the reg in 2000, you no longer qualify for retirement at 40% automatically. They will stick you doing crap work for month...or years until it is determined that humpty-dumpty cant be fivex, then they are going to severance you at 20%.

Sucks huh? Now thats the bad side...the good follows.

You file social security disability 2 months prior to discharge - yes prior and dont let anyone say you cant because I did. Even if you are being paid, if you have a dead mans profile you are not working. When they send you for you discharge physical list every damn thing you can find in you service medical records (oh make 2 sets of copies of these). Have the necessary form ready and filled out prior to the processing appointment otherwise they will just hand you the forms and a pen and its up to you to remember everything right then...and you wont. So, call find out what forms they are using, pull up copies and then fill then in using your SMR as a reference. Yes you can do this...and I'd list every single thing you can find, be it a tooth ache.

Start preparing to file you VA claim now....Look up CFR 38, and read section 4, and the IVDS guide posted here. I'll help you do your claim if you like. We seem to have similar injuries, and I am very good with back claims, as well as depression, mood disorders etc.

Honestly in my case it took almost 15 months to get 100% compensation and I am now rated at 170% schedular (you probably dont know what that means but it pretty damn near impossible to get). Yet thats quick compared to some, and I handeled my claim by myself from start to finish. I know they are going to want you to file your claim with your local VA "tiger" team, and we will, but if its properly prepared it will cut down on the whole process greatly.

Honestly guy...just email me at sixthscents@twlakes.net. I'll hook you up with my phone number and we can talk about your deal. I hate to be so pessimistic, but I have seen it again and again, so I just gotta tell you what I think will be the truth. Yet, there is life after the Army, and you WILL get justly compensated for your injuries. I make more now than I did when I was in...quite a bit more in fact. Anyway, email me and well talk...hell if nothing else you an speak with someone who has been where you are at.

Bob Smith

Edited September 8, 2006 by sixthscents