Some veterans may be losing valuable military disability benefits for themselves and their dependents by not requesting a formal hearing at the Physical Evaluation Board (PEB) before being discharged from the military.
Don't worry the VA will take care of you
Often military active duty servicemen and women in the rush to be separated or retired from active duty are told... "Don't worry, the VA will take care of you." Sometimes service members are informed that if they go to a Formal Board at a Physical Evaluation Board (PEB) they will lose or have their military disability reduced. Except for service members who exaggerate their disabilities, this rarely happens. Because they trust the advice, often given by well-intentioned counselors who process their disability cases, hundreds of deserving veterans, each year, fail to fully avail themselves of their rights to military disability processing. They waive their statutory right to a hearing at a PEB and consequently forfeit valuable medical benefits for themselves and their dependents that many veterans later learn they should have and could have received if they had not waived their right to a formal military disability hearing prior to discharge from service.
Federal Statute 10 U.S.C. 1214 provides:
"No member of the armed forces may be retired or separated for physical disability [includes mental] without a full and fair hearing if he [or she] demands it."
Military disability retirement benefits versus VA benefits
Even if the VA ultimately pays more disability compensation than the military, an active duty person should still strongly consider active duty disability processing and, if appropriate, request an in-person hearing at a Formal Physical Evaluation Board. This especially important if the service member is seeking military disability retirement to enable their dependents medical ID card benefits for retirees. In many cases the PEB depending on the medical evidence submitted, can be persuaded to increase disability and/or award disability retirement. The military provides TDY travel to the PEBs and free Judge Advocate General (JAG) counsel for the hearing. Civilian attorneys are also authorized at the service member's expense.
Opportunity to testify and present evidence at the PEB
At a formal in-person PEB hearing a soldier, sailor, or airman, may present their case with assistance of an attorney, face to face with the board members, who will decide their future lifetime benefits. AR 635-40 explains the PEB process in detail. The other services have a similar regulation. The informal PEB only reviews records and is unable to fully appreciate the physical or mental loss until the PEB hears testimony of the service member and carefully looks at the military service member before them.
The appeal of the Informal PEB to a Formal PEB should be done before discharge or retirement. It is difficult, time consuming, and expensive, to receive a higher military disability rating or backdate retirement utilizing the Board of Correction of Military Records (ABCMR, AFCMR, or NMCMR) process after discharge or retirement. The additional month or so of additional processing time pending a PEB formal hearing, while still earning full pay and allowances, is often worth delaying the transition to civilian life.
Advantage of obtaining at least a 30 % Militarty Disability Rating
Good legal advice from an experienced attorney is critical, beginning before the Medical Evaluation Board (MEB) and continuing throughout the PEB process.
Potential benefits include receiving a higher military disability rating and/or military retired ID card benefits. Service members qualify for military disability temporary or permanent retirement with at least a 30 per cent military disability rating. For some families the future lifetime medical care for themselves and their spouses and family members is more valuable than increased disability compensation. The opportunity to receive those military retired benefits that may be obtained by personally appearing at a PEB is worth substantially more than just later receiving VA compensation or military disability severance pay. More than half of the servicemen and women who appeal their cases in person at a formal hearing at the PEB receive a higher disability, gain military medical retirement, or other favorable result. Most cases that are denied by a PEB receive no change in military disability ratings. Obtain independent legal advice before you waive your statutory right to a military disability hearing (PEB).
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