Posted on July 23, 2008 in Military Law
FIVE STEPS TO WINNING YOUR PHYSICAL EVALUATION BOARD CASE
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.
Now that the DOD pilot programs designed to “level the playing field” and have one physical examination for both VA and military disability rating purposes are being run through a beta test, there is more confusion than ever about how to prepare for a medical board.
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.
I. 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.
Although most lawyers will tell you how great they are, have you ever wondered how they can verify their claims?
Let me first establish my credibility with you by showing you what other lawyers and judges nationwide think of my 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.Another way of performing your due diligence is to ask to speak with past clients. If a lawyer will not let you contact his or her previous clients to discuss their experiences with that attorney and the PEB system as a whole, doesn’t that make you wonder why they are so “gun-shy’?
When you have done your due diligence regarding your choice of counsel, the next step will be defining your goals in order to develop the evidence needed to achieve them.
II. STEP TWO: Why You Need to Define Your Goals As Early As Possible In Order to 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. After all, unless an attorney is a psychic, there is no way that he or she 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.
III. 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.
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.
If you agree, then it is time to move on to the next step in gaining control over your PEB case.
IV. STEP FOUR: How to Take Responsibility For Your Own Medical Care and Not Simply Accept a Diagnosis or Prognosis at Face Value.
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.
And, that brings us to the fifth step to winning your PEB case- recognizing the importance of non-medical evidence in achieving your goals.
V. The Fifth Step to Winning Your PEB Case is Recognizing the Importance of Non-medical Evidence When Adjudicating Your Case.
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 may 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.
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 closing, let me offer my best wishes for your continued success and profound thanks for your service to our country.
JOHN BRENDON GATELY
Attorney & Counselor at Law
2332 Croix Drive
Virginia Beach, Virginia 23451-1362
5 Easy Steps to Winning Military Disability Cases that you can implement within a few hoours and dramatically increase your chances of obtaining a great outcome in the Physcial Evaluation Board arena.