Disability - New Report Provides Hope to Injured War Veteran

New Report Provides Hope to Injured War Veterans

By Anonymous

Five Secrets to Winning Your Physical Evaluation Board Case

by

John Brendon Gately, Esq.

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.

Along the way, 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 such advice will be very likely to prove fatal to your attempts to obtain the best possible outcome in your 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.

What do I mean by the term “recent experience”? Instructions and procedures change every day, my friend. Be certain that any advice that you are given is up to date and valid.

The instructions governing the PEB process place the burden on you, the member, to ensure that the information upon which you are relying is accurate. Then again, that is as it should be. After all, it is your life that we are talking about, isn’t it?

Therefore, any information that you are provided that is more than a few months old may be outdated and should not be accepted at face value.

© John Brendon Gately (2004)

Many of those persons who will offer you advice have attended courses designed to familiarize them with the PEB system to perform their duties as PEB Liaison Officers (“PEBLO”), drafters of medical boards, patient administrators and command representatives.

However, this does not provide them with the knowledge needed to effectively advise you regarding your case. Remember, a little knowledge is a dangerous thing. This is especially true when it affects your future and that of your loved ones.

Think about your future for a few minutes. What will it be like trying to get health insurance after leaving the service with a disability? How about disability insurance? Will an employer be willing to take a chance on hiring you as opposed to someone who is not “broken”?

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.

In the course of my practice, I have been contacted by hundreds of former service members who were unhappy with the disposition of their cases. Virtually every time, they tell me how they cannot understand why they lost their case.

Yet, after a few minutes, the reason is very clear- they were given bad advice by persons who were manifestly unqualified to provide it in the first place.

That brings us to the first Secret to Winning your PEB Case.

I. The First Secret To Winning Your PEB Case Is To Take Advice Only From Persons Who Are Qualified To Offer It.

While many people reading this article will take offense at the direct nature of my message, I offer no apologies for the direct nature of my message as it is based on more than a decade of successfully representing service members like you at all levels of the PEB system.

Although many lawyers will tell you that they have been successful at what they do, you are probably wondering how you can verify my claims. The answer is simple- I will provide you with proof of my abilities, from both my clients and peers alike.

That way you will know that you can rely upon what I write and follow my advice with confidence. Along the way, you will learn techniques that you can use to judge the credibility and effectiveness of anyone who offers you advice regarding your case.

These techniques will be easy for you to employ and will not cause the person offering advice to take offense or be embarrassed. In fact, he or she is very unlikely to know that you are evaluating the basis for their opinion.

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.

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.

Ask anyone in the legal profession what this means and they will tell you that it speaks volumes. Rather than trying to impress you anymore with my credentials, I would rather let my clients’ stories speak for me.

You see, unlike many lawyers, I am not afraid to have you contact my clients.

Each person listed in this article has had a successful outcome in his or her case within the past twelve months. All of them have agreed to respond to your inquiries and would be glad to tell you why they hired me to represent them.

Every one of them will tell you that, in order to win your case, you need to have the best advice and representation possible. This is what I do for a living and they will all tell you that I am very good at it.

If you are being placed into the PEB system, make sure that you have retained the best person possible to give you that advice about how to win your case.

You see, knowing how to define your goals and develop evidence needed to achieve these goals is the second secret to winning your case.

II. The Second Secret to Winning Your Case is to Define Your Goals and Then Develop the Evidence Needed to Achieve Them.

When you enter the PEB system, you 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 panels in Seattle, San Antonio, San Diego 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.

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 working in an intellectual vacuum and is, to be charitable, 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? If so, then feel free to stop reading and pass this article on to someone else.

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 that discussion, we determine whether we can develop the evidence needed to achieve those goals. Then we get to work.

The reason why it is important to clearly define your goals at the outset is because it is your life that will be forever changed by the course of action that we take.

To illustrate my point, let’s review the case of Ryan Wig, a young Navy petty officer who suffered a knee injury just prior to being commissioned.

Ryan had been enrolled in a commissioning program that funded his education while he was earning an engineering degree from a prestigious university. While out jogging to maintain his level of conditioning, Ryan suffered a debilitating injury to his right knee.

When surgery and other modes of treatment were unable to return him to a full duty status, Ryan was placed in the Navy PEB system.

That is when he learned one of the harsh truths about this process- your entire medical history is considered in adjudicating your case.

This may not sound very significant at first glance, but here is why it almost ruined Ryan’s future. You see, he had dislocated that same knee when he was fourteen years old. However, he recovered from that injury and went on to play three sports in high school and take part in a number of college athletic activities.

While there was no evidence that this childhood injury adversely affected him in any way whatsoever, the Navy initially determined his injuries to be non-compensable and due to a preexisting condition. That is when he hired me.

Together, we overcame these findings on appeal and proved that there was no evidence that his current injury was related in any way to an isolated occurrence twelve years ago.

As a result of our efforts, he was found Unfit and offered Disability Severance Pay. When we reviewed this offer, we talked about Ryan’s plans for the future.

He knew that he would be unlikely to receive a disability retirement unless his condition was refractory to treatment after several additional surgical procedures. However, his surgeons made it clear there was no guarantee that further surgery would make him fit.

Since he would not be able to achieve his dreams or perform a full range of duties as a Naval Officer, he felt that it would be unfair to occupy a billet that someone else could fill. He preferred to give another young man or woman the chance to fulfill their dreams.

After discussing the matter with his fiancée, he decided to accept disability severance pay and return to graduate school. He had achieved his goals.

For those of you who wonder if this was a victory, ponder the alternative- the Navy was processing him out with no disability, even though he had suffered a serious injury.

Now he has received his college education free of charge, has disabled veteran status for employment purposes and will be eligible to continue on to graduate school under the VA’s vocational rehabilitation program.

All in all, a well-deserved victory for Ryan. Then again, why accept my characterization of the case? Feel free to ask Ryan how he feels about it. You can write to him at wigcorvette@aol.com.

As we work together 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 secret to winning your PEB case.

III. The Third Secret to Winning Your PEB Case is To Learn the Rules Governing the System and How Decisions Are Really Made Within It.

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.

You see, there are significant differences among the PEB systems of the various branches of our military that could have a direct impact upon your case.

For example, let me tell you how the failure of a military treatment facility to complete one simple form almost cost a man with a wife and six children the disability retirement that he justly deserved. Just one simple form, but it nearly ruined his life.

This is the story of Shawn Cotton, an Air Force staff sergeant who suffered a debilitating back injury when a military health care provider performed a spinal manipulation without his consent during a routine medical appointment to treat a migraine headache.

As a result, Shawn suffered a lumbar spine injury that required him to undergo more than a year of spinal surgery, nerve blocks, steroidal injections and physical therapy. Yet none of these efforts reduced his pain.

When he was processed through the Air Force PEB system, he was denied a retirement simply because his health care provider did not understand the Air Force profiling system and failed to complete a profile form for each of his injuries.

It would have only taken fifteen minutes to complete this form and the failure to do so nearly cost him his retirement. An isolated occurrence? Think again, it happens every day. Just be sure that it does not happen to you.

For those of you in the Army or the Air Force, the profiling system is critical to the adjudication of your case. No profile, no rating.

For Shawn, the lack of a profile for his migraine headaches would make the difference between being retired with benefits and being put out the door with a bad back and a severance check.

However, this point was not understood by the health care provider at his servicing treatment facility, who told him that “… his records would speak for themselves.” Bad advice, offered by someone totally unfamiliar with the system.

In Shawn’s case, both the informal and formal panels wanted to rate this condition, but were unable to do so under the regulations governing Air Force boards.

If he had been made aware of the importance placed upon profiles in the Air Force system, then Shawn would have been more aggressive in trying to obtain it.

However, this is not something that they will teach you in a Disability Transition Assistance Program (DTAP) seminar and you will not find it clearly defined in any book. Sometimes, you just need to know how the agency applies its own instructions.

After more than a decade of successfully representing personnel from all branches of the armed forces, I knew how to obtain the evidence that we would need to get the Secretary of the Air Force to overturn this adverse decision on appeal.

Working together, Shawn and I were able to obtain the profile and addendum that I needed to win him the permanent disability retirement that he so richly deserved.

However, it was a battle that could have been avoided if Shawn had come to me when they initiated his board. He just needed an experienced trail guide to show him the way.

Just ask Shawn, as he would readily agree. So would his wife Machelle and their six children. Feel free to write to him at machellecotton1@cox.net.

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.

Many times, I find clients like you are suffering from additional injuries that are potentially more disabling than the one that caused you to be placed in the PEB system.

Then again, sometimes even 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 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, as this knowledge can only come from experience but it also a key part of the fourth secret to winning your PEB case- taking responsibility for your own health care and not assuming that your doctor can read your mind.

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 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.

Neither is the VA disability process that follows. I will be representing you in both of these forums and expect you to work with me so that we can achieve all of your goals.

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?

If you agree, then it is time to move on to the next secret to gaining control of your PEB case. If not, then just hand this article to someone else you know who is injured and give them a chance to achieve their goals. Their families will thank you for it.

IV. The Fourth Secret to Winning Your PEB Case is To Take Responsibility For Your Own Medical Care and Not To 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.

For example, let me tell you about Dustin Wagner, a first class petty officer in the Coast Guard who was being processed through the PEB system for an ankle injury.

While this injury was debilitating, it would be unlikely to be rated higher than 20% disabling and he would most likely be separated with disability severance pay.

For a man with a wife and child who could no longer walk without a cane, this was a very disappointing prospect. To achieve a better outcome, we would need to find a way of increasing his disability rating.

As he described his symptoms to me, I noticed a discoloration of the skin on his injured leg and he complained of occasional pain radiating up his leg. As we talked further, he began to display more signs of a neurological impairment.

Based upon my experience with such cases, I knew that Dustin was displaying symptoms of Reflexive Sympathetic Dystrophy (“RSD”), a painful neurological disease more serious than his original injury.

While it would necessary to fight to have a full neurological workup performed on him as soon as possible, I also knew this evaluation would provide the information needed to argue successfully for a disability retirement. Eventually, the evaluation was complete and my suspicions were confirmed- Dustin had RSD.

As a result of our efforts, Dustin was recently retired with a permanent disability from the Coast Guard and is back home in North Dakota preparing to return to college to complete his education.

Having an attorney who is familiar with a wide variety of medical conditions will make the difference between winning and losing your case. Just ask Dustin. You can write to him at dwagner@drtel.net.

You can also ask Kate Cowley too. She is a young Army sergeant who developed Sudden Cardiac Death Syndrome after taking Ephedra to improve her performance on an Army physical readiness test.

Now she has a defibrillator embedded in her chest and will require extensive
(and very expensive) ongoing medical care for the rest of her life.

There was another sad twist to Kate’s story that I would like any of you taking Ephedra supplements to read very carefully before putting down this article. Kate’s cousin, another Army sergeant assigned to the same post, took some Ephedra supplements too. Unfortunately, this decision cost him his life.

As if losing her cousin and undergoing cardiac surgery were not traumatic enough, Kate was in for another shocking disappointment- the Army wanted to put her out without any disability, knowing that she would be unable to obtain medical care in the private sector.

The service took this harsh approach to Kate’s case because Sudden Cardiac Death Syndrome is a condition to which many people are predisposed based on their genetic background; thus, you could view it as a pre-existing condition that would not entitle her to a disability rating.

While many people would review the general medical literature supporting this position and simply accept it, I was profoundly troubled by this turn of events. You see, Kate is an otherwise healthy young woman with no significant medical problems. There had to be a reason why this happened.

Working together, Kate and I were able to persuade a gifted cardiologist who was the military’s expert regarding such issues to review her case.

He concluded that the medications she was prescribed for essentially minor conditions, together with the use of Ephedra, had triggered her heart condition.

This allowed us to successfully argue that her condition was service-aggravated and resulted in Kate receiving a permanent disability retirement, thereby assuring her of the medical care that she needs and easing some of her concerns about the future.

Now she can go back to college full-time and prepare for what I know will be a bright and rewarding future. Sometimes it takes a little extra work, or perhaps a little creativity. That is what it is all about, my friend- thinking outside the box.

Was it worth the effort? I think so. Then again, why not ask Kate how she feels about it? You can contact her at lovemygliders@hotmail.com.

And, when it comes to thinking outside of the box, that brings us to the fifth secret to winning your PEB case- recognizing the importance of non-medical evidence in achieving your goals.

V. The Fifth Secret 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. It is not enough to simply be suffering from a disease or traumatic condition.

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. Just ask Matt Miller.

Matt is a young Marine who was badly injured during martial arts training, but was likely to be adversely affected by the fact that his military duties were as an administrative clerk, a primarily sedentary job.

To win his case, we would need solid non-medical evidence from several sources- friends, co-workers, supervisors, etc.- showing how his injuries prevented him from performing even sedentary tasks.

Once we obtained this evidence, we were able to win Matt the permanent disability retirement that he deserved and send him back home to Oregon to complete his undergraduate degree through the VA vocational rehabilitation program.

Without it, Matt would have come up short of his goals. It required some additional footwork, but it was well worth it. At least I think so.

I believe that Matt would agree with me, but why don’t you ask him yourself? You can feel free to write to him at matt_b_miller@hotmail.com.

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 would like me to help you with your PEB case, then please feel free to contact me and I would be glad to discuss how we can work together to achieve your goals.

In closing, let me offer my best wishes for your continued success and profound thanks for your service to our country.

Sincerely,

John Brendon Gately
Attorney & Counselor at Law
2332 Croix Drive
Virginia Beach, Virginia 23451-1362
(757) 481-0772
Fax: 481-9629
www.gatelylawfirm.com

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