If you are a service member who has been injured and are not able to perform your duties, the odds are quite high that you will eventually be processed through your branch’s version of the Physical Evaluation Board (“PEB”) system.
Once this happens, you will find yourself trying to navigate your way through a confusing maze of medical, legal and administrative regulations that you need to be one part doctor, one part lawyer and one part cryptographer to decipher.
This document is designed to provide you with a road map to follow so that you will not be one of the many service members who fall through the cracks each year, simply due to a lack of knowledge and good case preparation.
If you follow each of the five steps listed below, you will be well on your way to obtaining the best possible outcome in the military disability system. Remember, this is a system that puts the burden upon you to understand any and all applicable rules, regulations, instructions and directives. While it may require a few hours of research on your part to find and read this information, you will find that it is time well-spent.
As you proceed through this process, you will find no shortage of well-intentioned individuals- friends, relatives, co-workers, supervisors and health care providers- who will try to tell you how the PEB system functions and what your case is worth. While I do not doubt their good intentions, following the advice of friends, family and co-workers will do far more harm than good when it comes to effectively handling your medical board case.
You see, there are very few people within the American military-active duty, Reserve or Guardsmen- who have had any significant experience adjudicating PEB cases or representing service members within the PEB system. "Adjudicating” means to decide or determine the outcome of a case, on the informal formal or appellate levels of the system. By “representing”, I mean that a person has actually served as counsel to a service member at the informal, formal or appellate levels of the PEB system.
Unless the person with whom you are speaking has had recent experience adjudicating cases or representing service members in PEB cases, then he is simply expressing his opinions and this information should not be blithely accepted as fact. Be certain that any advice that you are given is up to date and valid.
Truth be known, there is no second place in the PEB system. You either win or you lose. Your goal is to win, to obtain the best outcome possible and ensure that the future will be a bright one.
Step One: Be Sure Those Offering Advice Are Qualified to Do So
While many readers will take offense at the direct nature of this document, I offer no apologies for this comment as it comes from two decades of experience successfully representing service members like you at all levels of the PEB system.
When evaluating whether to hire a civilian counsel, the best thing that you can do is to learn what other lawyers and judges nationwide think of his or her skills and professionalism. To obtain this information, please visit the Martindale-Hubbell Web site at www.martindale.com.
If you are unfamiliar with this site, you will learn that Martindale-Hubbell is a world-renowned publishing firm that conducts peer reviews of attorneys to evaluate their professionalism and integrity. To accomplish this task, they send out extensive surveys to lawyers and judges nationwide to determine the competency and ethics of individual attorneys.
The highest rating for professionalism under the Martindale-Hubbell rating scheme is the coveted “AV” rating, indicating that an attorney is considered Preeminent among his peers nationwide and of unquestioned integrity. You cannot buy it, you have to earn it.
Most lawyers work diligently for twenty to thirty years to attain an AV rating. Many never do. I earned my AV rating within five years of entering private practice. If you ask anyone in the legal profession, they will tell you that it speaks volumes. Make sure that the attorney that you hire has similar credentials.
Step Two: Define Your Goals & Develop the Evidence Needed to Achieve Them.
When you enter the PEB system, you will first need to decide what you want as your outcome and seek the best advice possible about how to accomplish this goal.
If you wish to be found Fit or to remain in a Permanent Limited Duty Status until retirement, then the approach that we will take to developing your case will be very different than if you were seeking Disability Severance Pay or a Disability Retirement.
The best way to determine your goals is to have a complete set of your current medical records reviewed by an attorney who practices military disability law. Many times, I will have someone overseas or across the country call me to evaluate their case. Distance is immaterial in my area of practice, as I travel nationwide to represent service members before formal hearing panels in Seattle, San Antonio and Washington, DC.
However, I make it a point never to offer a definite opinion about a prospective client’s case until I have seen his or her medical record.
After all, unless an attorney is a psychic, there is no way that he can offer you an intelligent evaluation of your case without reviewing your health records. Anyone who does is either working in an intellectual vacuum or, to be charitable, is simply shooting from the hip. Is that what you want- an attorney who is willing to roll the dice regarding your future based upon inadequate information?
When I review a case with a prospective client by phone, e-mail or in person, I tell that person where they would stand if the case were adjudicated today and then talk about their goals and desires. Based upon these discussions, we can then determine how to develop the evidence needed to achieve those goals. Then we get to work.
As you begin to define your goals and develop a game plan to achieve them, you will need to learn as much as you can about how the system actually works because that is the next step to winning your PEB case.
Step Three: Learning the Rules and How the Game is Played
It is vital to your future well-being that you familiarize yourself with the instructions governing how PEB cases are decided within your branch of the service, especially if you are being treated at a military treatment facility operated by another service or a civilian treatment facility.
You see, there are significant differences in draftsmanship amongst the medical communities of the various armed services that can have a direct impact upon the outcome of your case. Never let anyone tell you that "... your records will speak for themselves."
Remember, from the moment you enter the PEB system, it is your job to make the hearing panel’s task as easy as possible. If you do, then you will markedly improve your odds of winning. If you do not, then you have no one but yourself to blame.
Of course, just knowing the rules is not enough. You need to be represented by someone who is an expert at handling medical evidence and spotting potential game-winning issues that even your own treating physician may not see.
Then again, sometimes the way that your doctor writes his notes can make the difference between achieving your goals and falling tragically short of them. That means that it is critical to your future to ensure that you are represented by someone who knows how your records must be drafted to win your case. Not to worry, that is my job.
I will do my part, if you will do yours. You see, it will take both of us, working together as a team, to achieve your goals. No matter how much pain you may be experiencing, I will still expect your help in winning your case.
Believe me, I know what it is like to have “play in pain” on a daily basis, as I myself have a 50% permanent disability rating for my service-connected injuries. You may feel “broken” right now, but I will be right there working with you to help you find a new niche where you can support yourself and pursue new interests and vocations.
All I expect from you is your very best effort, every day, because this is not a spectator sport, my friend. This is your life and it is worth any effort that it takes for us to give you a decent future. At least that is the way that I feel about it. How about you?
Step Four: Take Responsibility For Your Own Medical Care
There is no substitute for assuming responsibility for your own medical care and the processing of your case. The more that you learn about your own medical condition, the better prepared you will be to assist me in winning your case. Many times, the key to winning your case is simply learning how to effectively describe your symptoms and limitations to your health care providers and me.
Having an attorney who is familiar with a wide variety of medical conditions will make the difference between winning and losing your case. For example, in several recent cardiac cases, I have had clients who were suffering from "pump head" syndrome, a condition that causes neurocognitive deficits sometimes mistaken for depression. These injuries wound up being rated higher than the actual coronary bypass condition itself!
Sometimes, your case may require thinking outside of the box. And, when it comes to thinking outside of the box, that brings us to the fifth step to winning your PEB case- recognizing the importance of non-medical evidence in achieving your goals.
Step Five: Recognize the Importance of Non-medical Evidence
One area that most service members being processed through the PEB system fail to understand is the significance of non-medical evidence in deciding your case. You see, a service member can have a number of health problems that afflict them on a daily basis without being unfit to perform their duties.
If you believe that simply being ill or injured will earn you a disability retirement or severance pay, then you will be very disappointed in the outcome of your case.
In the PEB system, that medical problem must also render you UNFIT to perform your duties if you are to be offered disability severance pay or a disability retirement. On the other hand, for those who wish to be found FIT, you must show that your injuries do not prevent you from performing your duties.
However, no one really spends much time teaching participants in the PEB process how to generate accurate input from their parent commands to support their cases.
Many Commanding Officers are under the impression that they will be punishing you by describing how much time you miss from the workplace due to your injuries. Actually, quite the opposite is true. If your command describes you as being able to perform your duties, you will be found FIT even though you may not be able to tie your own shoelaces.
Having solid non-medical evidence describing in a clear and convincing manner how your injuries affect you in the workplace can make or break your case.
Conclusion
As you have seen during the course of this article, it is up to you to aggressively seek out the best advice and representation that you can to achieve your goals in the PEB arena.
It will require some additional effort on days that you may feel as though you cannot even stand up, but in the end it will all be worth it. After all, it is your future- make it a good one.
If you have any questions about this article, please feel free to contact me and I would be glad to be of assistance. In addition, please feel free to forward this document on to anyone whom you feel might benefit from it. In closing, let me offer my best wishes for your continued success and profound thanks for your service to our country.
v/r
Jack Gately