If you served in the military between Sept. 11, 2001, and Dec. 31, 2009, and were separated from service with a disability rating below 30 percent, it may be possible to receive a higher rating – one that will earn a retirement pension and TRICARE for life for you and your family – by submitting your case to the Department of Defense’s Physical Disability Board of Review (PDBR) for re-evaluation. The chances of receiving a higher rating, actually, are pretty good: In its first year of work, the PDBR has raised the disability rating to a retirement level in about 60 percent of the eligible cases submitted to it.

Critics who have been watching the board’s first year of work most closely, however, agree that its decisions have not always been error-free. The board reviews documents – medical records and reports of Physical Evaluation Boards (PEBs – and the process does not allow for service members or their advocates to steer them through and show them where things went wrong.

Below are some tips for bringing a case to the PDBR, provided by:

• Jason Perry, a military disability attorney, former Army JAG officer and founder of the Physical Evaluation Board Forum
• Lt. Col. Mike Parker (USA-Ret.), a stickler for Disability Evaluation System (DES) regulations and self-described “freelance gunslinger”
• Tom Moore, program director, Lawyers Serving Warriors

First and foremost, says Perry, you want to make sure you should file with the PDBR in the first place. “The statute of limitations for suing the government for wrongfully withheld benefits is six years,” he says. “For those who have had a Physical Evaluation Board prior to separation (which would apply to everyone who is eligible for PDBR review) this time will start to run on discharge. The time is not tolled by the PDBR application, so, if you apply to the PDBR and the decision is issued six years or more from your discharge, you will very likely have no other avenue to appeal if you get an adverse decision at the PDBR. The second consideration is more of a tactical decision. Depending on the legal issues underlying the erroneous PEB decision, the PDBR may not be the best forum for seeking redress.”

If you decide to go before the PDBR, don’t limit yourself to the application form – which is already flawed, Moore says, given what the PDBR is required to do. “DD Form 294, the application form, has a lot of errors and inconsistencies … it seems to be asking only about unfitting conditions, whereas you can ask about anything that was identified by the PEB – meaning anything that was considered by a medical evaluation board should be in that narrative summary [NARSUM].”

The form should be accompanied by a letter in which you clearly spell out what you expect the PDBR to do in its review. “Usually,” says Perry, “this will take the form of asking for a specific finding regarding the percentage award for each challenged disability. While possible to ask for a general ‘review’ of the case, if you do not ask for and argue for specific changes to the PEB’s findings, it may be easier for the PDBR not to address specific concerns and may make later challenges more difficult.”

Submit as much evidence as possible – especially evidence from the time of your separation or proximately after – and don’t limit your evidence to the records specified by the PDBR. As Parker points out, Department of Defense’s instructions for how to (using a downloadable PDF file) conduct reviews include the following:

As part of its review, the PDBR may, at the request of an eligible member as provided for in Reference (b), review conditions identified but not determined to be unfitting by the PEB of the Military Department concerned.

In other words, the board is theoretically free to ignore conditions NOT determined by a PEB to be unfitting unless the applicant specifically requests otherwise. You should list every condition you want the PDBR to review and cite where those conditions are in your DES package – the NARSUM, medical records, MEB physical, and MEB determinations, among other documents. If these conditions are not listed in any of these documents, says Parker, point out that DoD Instruction 1332.28 (using a downloadable PDF file) requires MEBs to cover all conditions.

Says Parker: “The PDBR is limiting what they review to what they are calling the ‘DES submission’ – the MEB physical, NARSUM, and PEB documents. What the PDBR consider PEB documents remains a mystery. Do a Freedom of Information Act request on your complete DES package and medical records – there is often more documentation than what they gave you. Get your complete military and medical records. Submit these with your application as evidence you want the PDBR to review as well.

• Once you’ve raised all the issues you want the PDBR to address, it is required by law – Title 10, Section 1222 of the U.S. Code (10 USC 1222a) – to address them in an orderly and itemized fashion.

Specifically raise all your issues in the letter you submit with your application, cite 10 USC 1222a, and tell the PDBR you expect it to address all these issues in their decision rationale, as required by law. “The PDBR will either address the issues or not,” says Parker. “If they don’t, their lack of response may give you better leverage in federal court and with congressional assistance.”

• In presenting your evidence, Perry says, remain focused on exactly what you are trying to prove – that you were unfit due to a claimed condition at the time you were separated, that you met the criteria for a higher rating at the time you were separated, and that the PEB made errors in adjudication. “A very common issue with PDBR decisions is a denial of a change in rating due to failure to show that you were unfit,” Perry says. “It is important to address this issue to maximize your chances of success.”
• Unless your case is what Parker calls a “no-brainer” – one in which the error is obvious to anyone who reviews your case – you must assume that the PDBR is as capable of making mistakes as any other evaluation board. Parker chronicles his allegations of these mistakes weekly – recently, in the complicated case of Spc. Louis Jardon, who was denied a change in rating after numerous alleged flaws in the PDBR’s review process. Jardon’s case, Parker says, demonstrates a clear need for applicants to be proactive, anticipating these mistakes and ensuring they don’t happen. “Take proactive steps to help avoid the PDBR from making the same mistakes,” says Parker. “You know your case better than anyone. Take the PDBR by the hand, give them a roadmap, and guide them to the correct decisions. They really need the help.”
• Finally, says Perry, think about hiring a professional if you think your case may be complicated. “It should not require legal representation to get the benefits you are entitled to,” he says. “However, it can be difficult and daunting to identify the errors and bases for entitlement for claimants. Consider seeking qualified legal representation if you have any questions about your case.”

See our article Better Benefits Can Be Yours that discusses the ins and outs of presenting your case before the PDBR.