The Blog at Military Disability Made Easy

The Blog at Military Disability Made Easy: September 2014

Monday, September 29, 2014

Some Disabled Service Members Can Remain On Active Duty

Not every service member with conditions that make them Unfit for Duty must leave the military. Each branch has special circumstances in place that would allow some disabled service members to continue on active duty after the Physical Evaluation Board has found them unfit.

For all branches, each case is individually determined. While there are some individual criteria, the overall idea for all of them is that they will only keep service members with particular skills, specialties, or experience that is needed by the branch at that time.

If you wish to apply to remain on active duty in any of the branches, your PEBLO will help you submit the correct paperwork during your Integrated Disability Evaluation System.

Air Force: Some disabled service members can remain on active duty in the Air Force on Limited 
Assignment Status (LAS).

To qualify for LAS, there must be a definite need for your particular skill, specialty, or experience, and your condition must be stable enough for it to be safely assumed that it won’t worsen significantly or require excessive medical care. Bluntly, you should be able to still greatly contribute to the Air Force without it harming you or you being a burden.

To apply for LAS, you must have served between 15 and 19 years. I assume that the basic idea for this limited time period is that service members with at least this many years have had a great deal of experience and training that could still be very beneficial to the Air Force, so it is worth it to keep them on longer, even if they aren’t physically fit. Less than this: not as valuable. More than this: 20 years is already a full military career. 

Marines: Disabled service members in the Marines may be able to stay on active duty by requesting Expanded Permanent Limited Duty (EPLD).

To be retained on EPLD, you must be able to still significantly contribute to the Marines. The Marines will only keep service members in certain MOSs, whatever is specifically needed at the time. There are no limitations for the amount of time the service member has already been on active duty.

Navy: Active duty may be retained in the Navy through Permanent Limited Duty (PLD).

Any service member can apply for PLD, regardless of how long they have served in the Navy.

You can be retained on active duty if:
- you have skills, specialities, etc., that are needed by the Navy
- you need to complete Navy-funded training programs
- you need to (and can) complete a tour of duty
- your specific medical conditions are needed for training purposes at medical facilities
- you have 18 years of active duty service and want to reach fleet reserve eligibility

To qualify for PLD, remaining on duty cannot possibly be a health risk to yourself or others.

Army: Service members can continue on active duty in the Army by applying for Continuation on Active Duty (COAD) or Continuation on Active Reserve (COAR).

All service members can apply for COAD/COAR, but the Army is most likely to keep members with between 15 and 20 years of active duty, who have an MOS that is in shortage or a critical skill, and whose disability is the result of combat or terrorism.

To qualify, remaining on active duty cannot be a health risk to yourself or others.

Wednesday, September 17, 2014

What Conditions Will the VA Cover After 8 Years on Active Duty?

Both the DoD and the VA will only give Military Disability Ratings for conditions that are service-connected. Once a service member has been in the military for 8 years or more, however, all of his genetic or EPTS conditions are automatically considered service-connected, and thus ratable. See our discussion of Service-Connection After 8 Years of Active Duty Service for complete details and exceptions. 

Since DoD Disability is only given once at the time of the service member’s separation from the military, it will be given for every condition he has that makes him Unfit for Duty at that time.

VA Disability, however, can change over time as conditions worsen or improve or as new conditions develop. This presents an interesting challenge when dealing with conditions that alone aren’t service-connected but are considered service-connected because of the length of active duty service. Basically, if a condition develops after a veteran is out of the military, it is eligible for VA Disability as long as it can be proven to be caused by a service-connected condition or, in the case of 8 years or more of active duty service, as long as it develops within the 1st year after separation from the military.

This sounds more complicated than it is, so here’s an example.

Let’s say Jim has cancer and served for 10 years.
  • If it developed while on active duty, it is ratable.
  • If it developed within 1 year of separation from the military, the VA will rate it, but not the DoD      since it has to be present at the time of separation for the DoD to rate it.
  • If it didn’t develop until more than 1 year after separation, then it is only ratable by the VA if it can be proven to have been caused by another service-connected condition or was a direct result of military experiences, like exposure to chemicals while on active duty.
That’s it. A condition that is not strictly service-connected or caused by a service-connected condition can only be considered service-connected for service members with 8 years or more on active duty if it develops within 1 year of separation.

Monday, September 8, 2014

Symptom or Condition?

It can be a bit tricky to figure out how to assign a Military Disability Rating to some conditions/symptoms. Some things may seem like a condition in and of themselves but are really just symptoms of bigger conditions. Just because something has an official sounding name doesn’t mean it is a condition all by itself. Similarly, some conditions have such a small effect on the overall functioning of the body, that it just isn’t ratable.

Here are a few examples of such symptoms/conditions:

Nyctalopia is a vision condition that makes it very hard to see at night. The VASRD doesn’t give a VASRD Code for nyctalopia. It is rare to have serious nyctalopia without having normal vision loss as well, so while nyctalopia isn’t ratable, vision loss is definitely ratable.

Bruit is a term used to describe the sound of the blood rushing past a block in the arteries or veins. Bruit is not a condition at all, just a sound, and thus a sign of a blood flow restriction or block condition. The bruit cannot receive a rating, but the condition causing the bruit most likely can.

Barrett’s Esophagus is a condition where the esophagus is damaged by acid from the stomach. It can make it hard to swallow. This is really not a condition but a symptom of Gastroesophageal Reflux Disease (GERD). So, if GERD is diagnosed, then that is what is rated, not the Barrett’s Esophagus. If, however, GERD is not diagnosed or the condition is caused by something else, then Barrett’s Esophagus can be rated under code 7203, stricture of the esophagus.

In order for you to properly understand how your conditions should be rated, it is important that you research your conditions and figure out whether each is truly a condition or whether it is just a symptom of another condition.

We provide thorough explanations of the VASRD and the VASRD Principles used to assign ratings for Military Disability. In our discussions, remember that each individual symptom cannot be rated unless it specifically says that it can. Find Your Conditions on our site to see what Military Disability Benefits you deserve.

Monday, September 1, 2014

Higher VA Appeals

If you disagree with your Rating Decision for VA Disability, you can submit appeals to have your VA Disability Rating increased.

There are multiple levels of appeals, and each level must be completed in order. We thoroughly discuss the first 2 levels in our discussion of VA Appeals on our site. Level 1 is the Board of Veterans’Appeals, and level 2 is the US Court of Appeals for Veterans Claims. These two levels are appeals that occur within the VA system itself. After you’ve completed level two, if you are still unhappy, you can appeal to a federal court.

Below are the two levels of VA appeals to federal courts that you can pursue and what you need to do to submit an appeal. We do NOT, however, recommend appealing to a federal court without some form of legal representation.

Level 3.

Level 3 of VA appeals is the US Court of Appeals for the Federal Circuit. You cannot appeal to this court for just anything, however.

The US Court of Appeals for the Federal Circuit will only review your case IF:

- There is a disagreement about the interpretation of the law. Much of the VASRD is left up to interpretation, but if you disagree with something that is clearly a fact, not an interpretation, your case will get thrown out of this court.
- You feel that the US Court of Appeals for Veterans Claims made a decision contrary to the laws that it is required to follow.
- There is evidence that a law that was used to determine the US Court of Appeals for Veterans Claims’ decision conflicts with other laws that would give your case a better outcome. Sometimes there are laws that override other laws in certain instances, but these cannot be contested. There can be nothing in the laws themselves that can logically decide which law should be dominant in your case for this argument to proceed.

If you submit an appeal for any other reason, the Federal Circuit court could fine you for filing a frivolous petition. Just be careful and make sure your argument is sound. This is where having legal representation could really help.

Remember that if you have new evidence, you have to start over at the local VA. You cannot submit new evidence to this court, or your case will be thrown out.

To apply to the US Court of Appeals for the Federal Circuit, you must submit your appeal within 30 days of the official judgment of the US Court of Appeals for Veterans Claims. If it is not received within 30 days, it will be thrown out.

To apply to the US Court of Appeals for the Federal Circuit, you actually submit a Notice of Appeal to the US Court of Appeals for Veterans Claims. For some reason, all appeals to the Federal Circuit court are processed through the Veterans Claims court instead of being sent directly to the Federal Circuit court.

In addition to the Notice of Appeal, include a copy of the United States Court of Appeals for Veterans Claims’ decision. You could also include an Information Sheet, but it is not required. Not a bad idea to include it, though.

The Federal Circuit court charges $450 to file an appeal, but since it is processed by the US Court of Appeals for Veterans Claims, the payment is made out to them. It can either be paid by check or money order to the U.S. Court of Appeals for Veterans Claims. If you honestly can’t afford to pay the fee, you can file a Forma Pauperis form instead.

The Federal Circuit court also required for you to submit an Informal Brief. This is where you state your issues and argue your case. This must be submitted within 21 days of your case being served, and it cannot exceed 30 pages in length.

The US Court of Appeals for the Federal Circuit provides a Guide for Pro Se Petitioners and Appellants that contains further detailed information about applying to this court, writing an Informal Brief, and what to expect after you submit your appeal.
Now after you receive the Federal Circuit court’s decision, and you’re still not happy, you can file a petition for rehearing, but you’re case will most likely not be reopened. They rarely will reconsider a case. After submitting a petition for rehearing, you can move on to Level 4.

Level 4.

This is it. The last level: The US Supreme Court. Can’t get any higher than that.

After you’ve received your ruling from the Federal Circuit, you can appeal to the Supreme Court.

The Supreme Court only hears 1% of all cases that are filed, so it is most likely that your case may never be heard. The Supreme Court only considers cases where:

 - Two lower courts have made completely different rulings on the exact same issue. The issue must be important enough that it would affect many people for the Supreme Court to deem it worthy.
- The issue involved is extremely important to the public and would affect a lot of people.

If your case doesn’t definitely fit one of these categories, then don’t waste your time submitting an appeal.

If your case does, and you wish to proceed, then you must submit a Writ of Certiorari within 90 days of the final judgment of the Federal Circuit court. Full directions and all the necessary forms can be found in the Guide For Prospective Indigent Petitioners For Writs of Certiorari.