Physical Evaluation Board (“PEB”) Hearings
When a servicemember become ill or is injured while on active duty and can no longer serve, his or her military career is over. To be considered fit for military service, usually the military service member must be able to: (1) complete the service’s physical fitness test, (2) perform the duties required of his or her job and (3) be fit for worldwide deployment. However, service members have certain rights before a determination of fit or unfit for duty is finalized. The Army, Navy, and Air Force Physical Evaluation system gives service members a right to a hearing to contest a finding or disability or to seek financial relief and medical care through the military disability system.
An Overview of the Military Physical Evaluation Process:
When a Command determines that a service member is unfit for further service, a Medical Board Report issued and the case is referred to the Physical Evaluation system. Each service has a Central Physical Evaluation Board which evaluates the service member’s medical records and the Medical Board Report and determines: (1) whether the service member is fit for continued service on active duty; and (2) if not, what disability rating should be awarded. The Veteran’s Administration’s Disability Evaluation Manual (“DEM”) is used by the military services to award a disability percentage which determines the level of compensation awarded to the service member and whether a service member should be eligible for disability retirement benefits.
Following the initial determination concerning fitness for duty and disability, if the service member does not agree with the findings he or she may appeal the decision to the service’s Physical Evaluation Board for a hearing before a 3-member panel. The Navy and Marine Corps’ PEB hearings are held at the Washington Navy Yard (in D.C.), the Air Force’s hearings are held at Lackland, AFB (in Texas), while the Army’s PEB hearings are held at Walter Reed Military Medical Center in Bethesda, Maryland.
The PEB Hearing Panel:
The hearing panel consists of three members (usually 0-6) – one panel member is a reservist and one must be a physician. The Board reviews the evidence presented by the service member and his or her counsel (there is no government attorney at these hearings). The burden is on the service member to show that the initial disability rating is mistaken based on the guidelines in the VA’s Disability Evaluation Manual. The service member is appointed a military attorney and may hire a civilian lawyer as well.
If the service member’s disability is rated at below 30%, then he or she receives a severance payment of two months’ pay times the number of years served (up to 12 years). The maximum severance that can be awarded is 24 months’ pay. The service member receives a Medical Discharge (Honorable) but no retirement or medical benefits through the military (unless he or she has already served 20 years).
The TDRL and PDRL:
If the service member’s disability is rated at 30% or higher, then he or she is placed on the Temporarily Disabled Retirement List (or the “TDRL”) for up to five years. The service member will receive 50% of his or her base pay (unless the rating his over 50%) and a military identification card as a medically retired service member. This allows the service member on TDRL to receive health care through the military system.
To be placed on the TDRL, the service member must show that he or she is not only unable to continue working in the military but is unable to work full-time at all. This is a high level of disability because the service member is asking the military service to determine that he or she should be allowed to retire due to the illness or injury. The service member on TDRL is subject to review every 18 months until five years have passed. If the condition has not improved after five years, then the service member will be placed on the Permanently Disabled Retirement List (“PDRL”).
If the condition improves, the service member can return to active duty if he or she fully recovers or may be separated with a severance payment. Throughout this process, medical documentation is key. Whether you are trying to prove that you are fit or unfit for duty, your medical records are the evidence that the Board will likely consider most relevant. If you don’t agree with the findings of your military physicians, you can see an outside physician for a second opinion.
Experience with PEB Cases:
During my time on active duty in the Navy, I represented over 150 cases before the Navy-Marine Corps Physical Evaluation Board (then located at the National Military Medical Center in Bethesda, Maryland.) I have also represented service members before the Army’s PEB which is now located in Bethesda, Maryland. While having a military attorney appointed to represent you is certainly helpful, he or she may not be able to provide you with the representation you need. Military attorneys stationed at the PEB are usually recently law school graduates and often lack experience in the particular medical issues.
Also, the assigned military counsel may have many other cases and collateral duties pending at the same time. Your case may be just another file – like all the rest. Often, the assigned military attorney will have two or three other cases scheduled for the same day and will not have time to look at your file until the day before the hearing. Your first meeting with you assigned legal counsel will often occur at the PEB the day prior to your hearing – too late to obtain any missing medical evidence.
How Can a Military Attorney in Bethesda Help?
During this uncertain time, it is crucial to work with an attorney who has significant experience arguing cases before the military’s Physical Evaluation Boards to protect your disability benefits or your military career. As a former Navy JAG attorney and as a civilian attorney, Larry Burch has over 25 years of experience representing military service members before the Army and Navy’s Physical Evaluation Boards. With his military background and experience before the PEB, Mr. Burch has skills and knowledge necessary to give you a fighting chance at the PEB. Contact the Burch Law Firm at (301) 474-4468 or schedule a free consultation online to discuss your legal concerns.