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Ask the Lawyer: Wounded troops can appeal low disability ratings

Dec. 7, 2011 - 04:41PM   |   Last Updated: Dec. 7, 2011 - 04:41PM  |  
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About the author

Mathew B. Tully is an Iraq War veteran and founding partner of the law firm Tully Rinckey PLLC. Click here to email questions. The information in this column is not intended as legal advice.

Q. I was injured during my last tour in Iraq. I received a 20 percent disability rating through the Physical Evaluation Board process, but this seems very low given the injuries I sustained in the line of duty. What should I do?

A. File an appeal.

Correcting inaccurate military disability ratings is crucial because the higher a rating, the more compensation a veteran can receive. It's especially important for wounded warriors to get at least 30 percent so they can get lifetime disability retirement pay and other benefits, instead of just a lump-sum disability severance payment.

The Defense Department in 2008 established a Physical Disability Board of Review to examine combined military disability ratings of 20 percent or less for wounded warriors separated between Sept. 11, 2001, and Dec. 31, 2009.

But the system remains inconsistent. Many service members separated during that period are unaware they have an automatic right to appeal combined military disability ratings of 20 percent or below to the PDBR.

Usually, an Informal Physical Evaluation Board begins reviewing a case after receiving a referral from a medical evaluation board.

The IPEB not only considers whether the service member is fit or unfit for duty but also, in the case of an unfit determination, whether the injuries or illnesses affecting one's fitness were sustained during active duty.

For service members found to have service-connected conditions, the IPEB will then determine their disability rating in accordance with the Veterans Administration Schedule for Rating Disabilities.

An IPEB could deem a member unfit but say the injury or illness wasn't connected to active duty. The board could say the condition existed before service began or was sustained while not on active duty. Such rulings could lead to lower disability ratings, or no rating at all.

You can challenge an IPEB unfitness determination by appealing to a Formal Physical Evaluation Board and submitting a written rebuttal along with previously undisclosed materials, such as medical and performance information.

However, keep in mind that an FPEB could issue a worse determination than the one issued by the IPEB.

Even so, service members can take unsatisfactory FPEB findings to another appellate level, though they must file within 10 days. This final step in the appeals process varies among the services and ends up with the U.S. Army Physical Disability Agency, the Secretary of the Navy Council of Review Boards, or the Secretary of the Air Force Personnel Council.

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