Perry's View

Sec. 1612. MEDICAL EVALUATIONS AND PHYSICAL DISABILITY EVALUATIONS OF RECOVERING SERVICE MEMBERS.

(a) Medical Evaluations of Recovering Service Members.--

(1) In general.-- Not later than July 1, 2008, the Secretary of Defense shall develop a policy on improvements to the processes, procedures, and standards for the conduct by the military departments of medical evaluations of recovering service members.

(2) Elements.-- The policy on improvements to processes, procedures, and standards required under this subsection shall include and address the following:...


(D) Procedures for ensuring that--

(i) upon request of a recovering service member being considered by a medical evaluation board, a physician or other appropriate health care professional who is independent of the medical evaluation board is assigned to the service member; and

(ii) the physician or other health care professional assigned to a recovering service member under clause (i)--

(I) serves as an independent source for review of the findings and recommendations of the medical evaluation board;

(II) provides the service member with advice and counsel regarding the findings and recommendations of the medical evaluation board; and

(III) advises the service member on whether the findings of the medical evaluation board adequately reflect the complete spectrum of injuries and illness of the service member.

110 P.L. 181, 1612

The above passage from the 2008 NDAA presents some powerful possibilities in presenting a case to the Physical Evaluation Board.

The first possibility I see is in using this law to refute the all too common rejection of conditions on the basis of lack of diagnosis or as meeting retention standards. By having an independent physician issue an opinion about the diagnosis or disqualifying nature of a condition, I believe that Medical Evaluation Boards will be forced to include many conditions they previously rejected.

What will act as a "force multiplier" though is the addition of a good advocate to your team. As an attorney, I think it would be especially effective to have an attorney draft questions for your independent physician to answer. By having specific questions answered, the Physical Evaluation Board will be forced to address the points raised. The attorney will be able to more effectively present evidence which in many cases will force the PEB to come to a favorable decision. If they fail to do so, weighing the evidence presented, their decision will be very vulnerable to appeal.

I think that this early use of the resource offered by the 2008 NDAA will only have a positive effect on the outcome of cases. In my view, this has the potential to be a devastating "one-two" punch in the presentation of a case before the PEB.