5 Physical Evaluation Board Pitfalls: Ignore These Things at Your Own Peril!

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By: Joel Pettit • May 12, 2023

During my time as a Formal Physical Evaluation Board (FPEB) lawyer, most of my clients thought the PEB was made up of unhappy Service members or civilians whose sole mission in life was to thin out the ranks; this could not be further from the truth. Of course, like any group of decision makers who are under tremendous pressure and strain, there are FPEB members who can be gruff, short tempered, and a bit insensitive at times; these attributes are the exception, not the norm. Having also served as an Informal PEB attorney at Camp Lejeune, NC, I can understand why many Service members waiting for their FPEB hearing dates slowly began to view the PEB as a huge machine, indiscriminately ending the careers of devoted Service members: frustrated with the process, many Service members start trusting poorly informed people and reading outdated, flawed, or patently false information posted on websites professing to be written by experts.  

Having been assigned to legal billets at every level of the Integrated Disability Evaluation System (IDES) – military and civilian –, I am intimately familiar with the obstacles that await Service members. Although all the Armed Forces continue to improve their PEB processes, there remains to be an array of logistical, intellectual, and legal complications that plague even the most adept and diligent Service members. That said, having represented hundreds of clients during both the IPEB and FPEB stages, I compiled a list of five issues that are common pitfalls for Service members.  

Pitfall #1: Experience Does Not Always Impart Wisdom. Simply because a Service member has been through the Integrated Disability Evaluation System (IDES), was placed on the Temporary Disability Retirement List (TDRL) and was subsequently placed on the Permanent Disability Retirement List (PDRL), does not mean they are a reliable source of knowledge for how to navigate TDRL examinations or follow-on Physical Evaluation Boards (formal or informal). Every case is different, no matter how similar the fact patterns may seem. Joel Pettit Law’s insight posts explore the vast array of issues and nuances that plague each case. Unfortunately, even if two cases were identical in every way, there is no accounting for how the PEB will interpret that rules, regulations, and laws it will apply to the facts of a particular case; this is precisely why there is an element of chance during every FPEB hearing.  

Pitfall #2: Assuming Combat Related Special Compensation (CRSC) is for Combat Veterans Only. This is 100% false. Although CRSC can be awarded to combat veterans, Service members who have never been deployed can receive CRSC so long as the following four (4) elements are met: (1) be entitled to and/or receiving military retired pay; (2) be rated at least 10 percent by the Department of Veteran’s Affairs (VA); (3) waive your VA pay from your retired pay; and (4) file a CRSC application with your Branch of Service. Moreover, there are four (4) categories of injuries that can qualify for CRSC: (1) Armed Conflict; (2) Hazardous Duty; (3) An Instrumentality of War; and (4) Simulated War. Combat veterans are not the only retirement eligible Service members who should be applying for CRSC; knowing how to apply in a way that gives you the best chance at receiving a favorable CRSC decision is where having a skilled lawyer on your side makes the most difference.  

Pitfall #3: Believing Service Members Who the VA Rates as 100% Disabled Must Be Retired. VA disability percentages do not necessarily paint an accurate picture of how a Service member can successfully complete their duties. Although VA examiners – during the Compensation and Pension Exam (C&P Exam) – use a detailed questionnaire (the Disability Benefits Questionnaire or “DBQ”) to ensure that each Service member’s medical history is exhaustively analyzed to ensure accurate disability ratings, this does not mean that individual Service members cannot overcome the hurdles their disabilities pose. That said, VA ratings are not meaningless, as many 100% disabled veterans certainly suffer extreme challenges to complete the most basic tasks of everyday living. Simply put, the VA does not decide whether Service members can successfully carry out their duties; this is why the PEB exists. 

Pitfall #4: Not Understanding the Value of Certain Types of Evidence. It is simple to see that a commanding officer’s recommendation is an amazing piece of evidence if a Service member wants to be found fit. It is equally simple to realize that a treating physician’s statement is extremely helpful in explaining the current emotional state of their patient. But what about diverse types of medical tests? What is better to prove how damaged a nerve is – electromyography (EMG) or a nerve conduction study (NCS)? Are these the only two medical tests that result in objective findings? What about statements about how a medical condition affects a Service member’s ability to do their job? Must statements come from a commanding officer; from a civilian supervisor; a doctor? Can they come from friends or family or other Service members in lower ranks? Clients can spend hundreds of hours straining workplace relationships and personal friendships searching for statements that may deliver little or no value.  

Pitfall #5: Not Weighing the Risks of a Formal Physical Evaluation Board (FPEB) Correctly. Clients, and sometimes attorneys, make the glaringly obvious error of assuming an unfitting condition from a Service member’s IPEB will continue to be unfitting during their FPEB hearing. During FPEB hearing, board members undertake a de novo review of all evidence and issues concerned. Put simply, electing an FPEB effectively wipes the slate clean. Although FPEB hearings give Service members the chance to present any issues and evidence they feel are relevant to their fitness determination, it also means that the FPEB members are not bound by any determinations made by the IPEB. Service members who are seeking to increase their DoD – a potentially their VA – disability percentage must keep in mind that FPEB hearings require diligent preparation to not only include additional conditions, but also preserve and solidify their conditions the IPEB previously deemed unfitting.  

If you’re facing any of these challenges, please don’t hesitate to contact Joel Pettit Law to discuss your case.

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