Wow, the free social network posting service at ping.fm is incredible. Its easy enough that a technology-challenged Neanderthal like me can use it.

Just read a great post by Sarah Robinson about what she learned from the BCS Championship game at escapingmediocrity.com.

KEY FLAW IN DOD/VA PILOT PROGRAM

Over the past few months, it has become plain that there is little or no direction provided to soldiers, sailors and airmen about how to properly draft a reconsideration request to the VA Rating Activity.  Over the next few days, I will begin posting a step-by-step formula that you may use as a model in drafting your own reconsideration requests.  Stay tuned for further developments.

IMPORTANT NEWS FOR ANYONE WITH SPINAL INJURIES

Dear Friends:

1. An issue arose in a case that I had two weeks ago that is critical to all of you who have suffered injuries to the thoracolumbar spine.

2. Contrary to the guidance provided by the VA to its disability examiners regarding the assessment of range of motion of thoracolumbar spine, some PEB members and examiners are under the impression that it is not necessary to isolate out hip flexion when assessing this spinal segment.

3. When I brought this problem to the attention of Dr. Audrey Tomlinson, a senior medical advisor at USAPDA, because of the current Army guidance adopted by many other services does not expressly state that it is necessary to do so, she very courteously and swiftly responded as follows:

a. All Army MEB personnel have been instructed since 14 Oct 08 to follow the VA disability worksheet for assessing range of motion, a publication that expressly requires them to isolate out hip flexion.

b. The current guidance memo on this issue is being pulled from the web site until it is updated.

c. CAPT Noel Howard, the Senior Medical Advisor to the Navy PEB, is taking the same action.

4. Why is this important?

Example: suppose that you had a lumbar fusion. A normal range of motion on forward flexion in the thoracolumbar spine is from 0 to 90 degrees.

a. With a fusion, your range of motion should be much more limited.

b. However, if the examiner includes hip flexion, you could erroneously appear to have had a full range of motion. This could take you out of the disability retirement range into severance or being found fit.

c. In my case, the examiner thought that my client had 105 degrees of forward flexion, 116% of normal after a fusion!

d. Believe it or not, the board members thought that the DeLuca guidelines allowed for inclusion of hip flexion because the Army pub they were using (referenced above) did not expressly require them to isolate it out.

e. This was because it was intuitively obvious to the folks at the USAPDA that the worksheet was attached as an enclosure and someone might actually READ it.

5. My advice to anyone pending a range of motion assessment- go the va.gov web site, pull down the forms menu, go to the disability exam worksheets, pull up the latest range of motion assessment memo from June of this year, read it, learn it and ensure that the person conducting your exam follows its criteria . It will save you a great deal of grief.

HOW TO FIND CUTTING EDGE MEDICAL TREATMENT

 After my recent return from a pilgrimage to Lourdes, I was struck by how many of my fellow pilgrims were desperately seeking information about how to locate and apply for participation in any of the 55,000+ clinical trials currently being conducted worldwide to study innovative treatments for potentially fatal or debilitating injuries and diseases.

Unfortunately, this information is not readily available to the general public and many of the more seriously afflicted lack the stamina or persistence needed to find and access these sites.  As a result, some suffer needlessly simply due to a lack of information. 

With this in mind, I decided to pass on the results of several days of intensive research identifying the most user-friendly clinical trials search engines needed to find research studies that may help you or your loved ones.  Please feel free to pass this article on to anyone whom you feel my personally benefit from it.  With that in mind, here is my list of the most user-friendly clinical trials search engines currently available to the general public:

 Clinicaltrials.gov:  This search engine, a service provided by NIH, provides a listing service of more than 57,000 clinical trials being conducted in 155 countries around the world.  Using a straightforward search structure, users can learn the location, purpose, enrollment criteria and contact information for these studies.   You will find its search engine to be very easy to use.  

Searchclinicaltrials.org:  This search engine is sponsored by the Center for Information and Study of Clinical Research Participation, a 501(c) (3) organization deserving of your support.  When you visit the site, be sure to sign up for their mailing list to receive a wealth of information about upcoming clinical trials and events.  Trust me, you will not regret the few minutes that it will take you to complete their intake form and begin receiving information that you can begin using today to improve your quality of life or that of a terminally or chronically ill loved one.  

Centerwatch.com:  A division of the Boston-based Jobson Medical Information publishing firm, Center Watch is known amongst medical professionals for its cutting edge service Clinical Trials Today.  However, it should be equally well know to patients, their advocates and family members for its phenomenal Patient Notification Service.  This service allows you to identify up to 20 medical conditions of interest to you, thereby resulting in you receiving e-mail notification should any studies, medications or other cutting edge developments arise concerning these topics.  You would be very foolish not to take advantage of this service- I do and it has benefited members of my family as well as clients of my military disability law practice.  

Clinicaltrials.ifpma.org:  Funded by member contributions, this search portal operated by the International Federal of Pharmaceutical Manufacturers & Associations provides over 250,000 links to government and commercial studies worldwide.  This service allows you to create a personal profile and save up to six search inquiries at a time.  As a practice tip, you will find it best to use a Landscape format in printing out the results of your search of the Clinical Trials portal.  Otherwise, you will find the information to be rather unreadable.  Nevertheless, it is well worth the effort as this site provides a startling level of detail regarding each study.

5 STEPS TO WINNING YOUR MILITARY DISABILITY CASE

If you are a service member who has been injured and are not able to perform your duties, the odds are quite high that you will eventually be processed through your branch’s version of the Physical Evaluation Board (“PEB”) system.

Once this happens, you will find yourself trying to navigate your way through a confusing maze of medical, legal and administrative regulations that you need to be one part doctor, one part lawyer and one part cryptographer to decipher.

Now that the DOD pilot programs designed to “level the playing field” and have one physical examination for both VA and military disability rating purposes are being run through a beta test, there is more confusion than ever about how to prepare for a medical board.

This document is designed to provide you with a road map to follow so that you will not be one of the many service members who fall through the cracks each year, simply due to a lack of knowledge and good case preparation.

If you follow each of the five steps listed below, you will be well on your way to obtaining the best possible outcome in the military disability system.

Remember, this is a system that puts the burden upon you to understand any and all applicable rules, regulations, instructions and directives.

While it may require a few hours of research on your part to find and read this information, you will find that it is time well-spent.

As you proceed through this process, you will find no shortage of well-intentioned individuals- friends, relatives, co-workers, supervisors and health care providers- who will try to tell you how the PEB system functions and what your case is worth.

While I do not doubt their good intentions, following the advice of friends, family and co-workers will do far more harm than good when it comes to effectively handling your medical board case.

You see, there are very few people within the American military-active duty, Reserve or Guardsmen- who have had any significant experience adjudicating PEB cases or representing service members within the PEB system.

“Adjudicating” means to decide or determine the outcome of a case, on the informal formal or appellate levels of the system.

By “representing”, I mean that a person has actually served as counsel to a service member at the informal, formal or appellate levels of the PEB system.

Key Point: Unless the person with whom you are speaking has had recent experience adjudicating cases or representing service members in PEB cases, then he is simply expressing his opinions and this information should not be blithely accepted as fact.

What do I mean by the term “recent experience”? Instructions and procedures change every day, my friend. Be certain that any advice that you are given is up to date and valid.

As I wrote on the previous page, the instructions governing the military disability system firmly place the burden upon you to ensure that the information upon which you are relying is accurate. Then again, that is as it should be. After all, it is your life that we are talking about, isn’t it?

Many persons who will offer you advice have attended courses designed to familiarize them with the PEB system to perform their duties as PEB Liaison Officers (“PEBLO”), drafters of medical boards, patient administrators and command representatives.

However, this does not provide them with the knowledge needed to effectively advise you regarding your case. Remember, a little knowledge is a dangerous thing. This is especially true when it affects your future and that of your loved ones.

Think about your future for a few minutes. What will it be like trying to get health insurance after leaving the service with a disability? How about disability insurance? Will an employer be willing to take a chance on hiring you as opposed to someone who is not “broken”?

Truth be known, there is no second place in the PEB system. You either win or you lose. Your goal is to win, to obtain the best outcome possible and ensure that the future will be a bright one.

In the course of my practice, I have been contacted by hundreds of former service members who were unhappy with the disposition of their cases. Virtually every time, they tell me how they cannot understand why they lost their case.

Yet, after a few minutes, the reason is very clear- they were given bad advice by persons who were manifestly unqualified to provide it in the first place.

I. STEP ONE: Be Sure Those Offering Advice Are Qualified to Do So

While many readers will take offense at the direct nature of this document, I offer no apologies for this comment as it comes from two decades of experience successfully representing service members like you at all levels of the PEB system.

Although most lawyers will tell you how great they are, have you ever wondered how they can verify their claims?

For that matter, how can you verify my claims that I am successful at what I do? The answer is very simple- I will provide you with proof of my abilities, from both my clients and peers alike.

That way you will know that you can rely upon what I write and follow my advice with confidence. Along the way, you will learn techniques not known by either the general public or most lawyers that you can use to judge the credibility and effectiveness of anyone else who offers you advice regarding your case.

Best of all, these techniques are easy to learn and will not cause the person offering advice to take offense or be embarrassed. In fact, he or she is very unlikely to know that you are evaluating the basis for their opinion.

Let me first establish my credibility with you by showing you what other lawyers and judges nationwide think of my skills and professionalism. To obtain this information, please visit the Martindale-Hubbell Web site at http://www.martindale.com.

If you are unfamiliar with this site, you will learn that Martindale-Hubbell is a world-renowned publishing firm that conducts peer reviews of attorneys to evaluate their professionalism and integrity.

To accomplish this task, they send out extensive surveys to lawyers and judges nationwide to determine the competency and ethics of individual attorneys.

The highest rating for professionalism under the Martindale-Hubbell rating scheme is the coveted “AV” rating, indicating that an attorney is considered Preeminent among his peers nationwide and of unquestioned integrity. You cannot buy it, you have to earn it.

Most lawyers work diligently for twenty to thirty years to attain an AV rating. Many never do. I earned my AV rating within five years of entering private practice. If you ask anyone in the legal profession, they will tell you that it speaks volumes.

However, rather than trying to impress you anymore with my credentials, I would rather let my clients’ stories speak for me.

You see, unlike many lawyers, I am not afraid to have you contact my clients. Each person listed in this article has agreed to respond to your inquiries and would be glad to discuss their experiences with you.

If another lawyer will not let you contact his or her previous clients to discuss their experiences with that attorney and the PEB system as a whole, doesn’t that make you wonder why they are so “gun-shy’?

When you contact some of my former clients, you will find that they are emphatic about the need to have the best advice and representation possible. Why?

Well, Major Irma Groot would tell you that she had been erroneously informed by several people that she did not qualify for processing through the Air Force PEB system even though her injuries were incurred while serving as a nurse on med evac missions flown in support of Operation Iraqi Freedom.

Unfortunately, as an Air Force reservist, Irma did not have access to the most accurate information since many Guard and Reserve units lack personnel with current PEBLO training.

However, working together, we achieved the permanent disability retirement that her PEBLO, coworkers and supervisors had said would be unattainable. While they were shocked at the outcome, we were not the least bit surprised as our case was well-prepared.

If you are a Reservist, Guardsman, or simply would like to chat with Irma about her experiences, feel free to write to her at Irma.Groot@gmail.com.

When you have done so, I think that you will agree with me that knowing how to define your personal goals is the key to developing the evidence needed to achieve them. And that is the second step to winning your PEB case.

II. STEP TWO: Why You Need to Define Your Goals As Early As Possible In Order to Develop the Evidence Needed to Achieve Them.

When you enter the PEB system, you will first need to decide what you want as your outcome and seek the best advice possible about how to accomplish this goal.

If you wish to be found Fit or to remain in a Permanent Limited Duty Status until retirement, then the approach that we will take to developing your case will be very different than if you were seeking Disability Severance Pay or a Disability Retirement.

The best way to determine your goals is to have a complete set of your current medical records reviewed by an attorney who practices military disability law. Many times, I will have someone overseas or across the country call me to evaluate their case.

Distance is immaterial in my area of practice, as I travel nationwide to represent service members before formal hearing panels in Seattle, San Antonio and Washington, DC.

However, I make it a point never to offer a definite opinion about a prospective client’s case until I have seen his or her medical record.

After all, unless an attorney is a psychic, there is no way that he can offer you an intelligent evaluation of your case without reviewing your health records.

Anyone who does is either working in an intellectual vacuum or, to be charitable, is simply shooting from the hip.

Is that what you want- an attorney who is willing to roll the dice regarding your future based upon inadequate information? If so, then feel free to stop reading and pass this article on to someone else.

When I review a case with a prospective client by phone, e-mail or in person, I tell that person where they would stand if the case were adjudicated today and then talk about their goals and desires. Based upon these discussions, we can then determine how to develop the evidence needed to achieve those goals. Then we get to work.

The reason why it is important to clearly define your goals at the outset is because your life will be forever changed by the course of action that we take.

To illustrate my point, let’s review the case of Ryan Klinger, a young Marine Lance-Corporal who was undergoing a fusion of the lumbar spine a few months before he was due to leave active duty.

Ryan was erroneously told that the best thing for him was to “avoid the hassle of the PEB system”, undergo his surgery and then allow his convalescent leave to roll over into terminal leave and file a claim with the VA upon leaving active duty.

This was sheer, unadulterated nonsense as the nature of his surgery was such that he would have a lengthy convalescence and would not have full access to VA physicians unless he was subsequently rated at 50% disabled or higher, thereby qualifying for Priority One status at most VA medical centers.

However, since Ryan planned to return home to South Carolina, he needed to know that it could take more than 12 months to adjudicate his initial VA claim.

If he sought private health care coverage, he would find that most insurers would view his spinal fusion as a pre-existing condition for which they would either not provide coverage or for which there would be a significant waiting period for benefits.

Fortunately for Ryan, a relative who had been a veteran and understood how badly swamped VA facilities were nationwide suggested that he contact an attorney before deciding whether to waive processing through the PEB system.

Based upon my review of his records and what I anticipated as the various possible outcomes of his surgery, I knew that Ryan would be walking away from a 40% disability retirement if he left active duty without having his military physicians initiate a medical board.

Working together, we walked his Navy physicians through the process of assessing the limitations to his range of motion in the thoracolumbar spine using objective testing criteria that had only recently been adopted by the Navy PEB system.

The end result? Ryan received a 40% disability retirement from the Marine Corps, worked with me to achieve a great VA disability rating and is currently attending college in South Carolina under the VA vocational rehabilitation program

While I think that is a great result, why not ask Ryan how he feels about it? You can send him an e-mail at ryanjklinger@gmail.com.

As you begin to define your goals and develop a game plan to achieve them, you will need to learn as much as you can about how the system actually works because that is the next step to winning your PEB case.

III. STEP THREE: Learning the Rules and How the Game is Played

It is vital to your future well-being that you familiarize yourself with the instructions governing how PEB cases are decided within your branch of the service, especially if you are being treated at a military treatment facility operated by another service or a civilian treatment facility.

You see, there are significant differences in writing styles in the medical communities of the various armed services that can have a direct impact upon the outcome of your case.

Take the case of CAPT Wollom “Wally” Jensen as an example. Wally had been placed on the Temporary Disability Retirement List due to a form of Mulitple Myeloma that is insidious in nature- so directly affecting the vertebrae of the spine as to cause Wally to lose several inches in height due to the crushing of the disks.

Unfortunately, the military treatment facility providing his chemotherapy had recently sent his entire record to the local VA Regional Office as part of his claims review and several years of treatment records were inadvertently misplaced.

Add to this the fact that his care provider erroneously assumed that the residuals of his disease would be intuitively obvious to the Navy hearing panel reviewing his case.

As a result, he was initially found Fit for duty even though he was still undergoing chemotherapy every 28 days.

Working together, we recreated his records and I assisted his doctors in drafting narrative summaries that made the debilitating nature of the disease clear.

The end result? We won a permanent retirement for Wally, providing him with a sense of security and peace of mind that is vital to the well-being of any oncology patient.

They key to winning this case- never listen to anyone who tells you that “ your records will speak for themselves.”

Remember, from the moment you enter the PEB system, it is your job to make the hearing panel’s task as easy as possible. If you do, then you will markedly improve your odds of winning. If you do not, then you have no one but yourself to blame.

Then again, that is just my opinion. Why not ask Wally what he thinks? You can reach him at waj_8501@hotmail.com

Of course, just knowing the rules is not enough. You need to be represented by someone who is an expert at handling medical evidence and spotting potential game-winning issues that even your own treating physician may not see.

Many times, I find clients like you are suffering from additional injuries that are more disabling than the one that originally caused you to be placed in the PEB system.

Then again, sometimes the way that your doctor writes his notes can make the difference between achieving your goals and falling tragically short of them. That means that it is critical to your future to ensure that you are represented by someone who knows how your records must be drafted to win your case. Not to worry, that is my job.

I will do my part, if you will do yours. You see, it will take both of us, working together as a team, to achieve your goals. No matter how much pain you may be experiencing, I will still expect your help in winning your case.

Believe me, I know what it is like to have “play in pain” on a daily basis, as I myself have a 50% permanent disability rating for my service-connected injuries. You may feel “broken” right now, but I will be right there working with you to help you find a new niche where you can support yourself and pursue new interests and vocations.

All I expect from you is your very best effort, every day, because this is not a spectator sport, my friend. This is your life and it is worth any effort that it takes for us to give you a decent future. At least that is the way that I feel about it. How about you?

If you agree, then it is time to move on to the next step in gaining control over your PEB case. If not, then just hand this article to someone else you know who is injured and give them a chance to achieve their goals. Their families will thank you for it.

IV. STEP FOUR: How to Take Responsibility For Your Own Medical Care and Not Simply Accept a Diagnosis or Prognosis at Face Value.

There is no substitute for assuming responsibility for your own medical care and the processing of your case. The more that you learn about your own medical condition, the better prepared you will be to assist me in winning your case.

Many times, the key to winning your case is simply learning how to effectively describe your symptoms and limitations to your health care providers and me.

For example, let me tell you about MK1 Dustin Wagner, a first class petty officer in the Coast Guard who was being processed through the PEB system for an ankle injury.

While this injury was debilitating, it would be unlikely to be rated higher than 20% disabling and he would most likely be separated with disability severance pay.

For a man with a wife and child who could no longer walk without a cane, this was a very disappointing prospect. To achieve a better outcome, we would need to find a way of increasing his disability rating.

As he described his symptoms to me, I noticed a discoloration of the skin on his injured leg and he complained of occasional pain radiating up his leg. As we talked further, he began to display more signs of a neurological impairment.

Based upon my experience with such cases, I knew that Dustin was displaying symptoms of Reflexive Sympathetic Dystrophy (“RSD”), a painful neurological disease more serious than his original injury.

While it would necessary to fight to have a full neurological workup performed on him as soon as possible, I also knew this evaluation would provide the information needed to argue successfully for a disability retirement.

Eventually, the evaluation was complete and my suspicions were confirmed- Dustin had RSD (now known to many neurologists and pain managers as “Complex Regional Pain Syndrome” or “CRPS”).

As a result of our efforts, Dustin was recently retired with a permanent disability from the Coast Guard and is back home in North Dakota successfully his own business as a 100% disabled veteran whose college education was paid for in its entirety through the VA Vocational rehabilitation program.

Having an attorney who is familiar with a wide variety of medical conditions will make the difference between winning and losing your case. Just ask Dustin. You can write to him at sales@enableddesigns.com.

You can also ask Meaghan Whitehead too. Meaghan is a young Marine Corps officer who was placed on the TDRL in 2006 for two different medical conditions. During her final review, the Navy PEB determined that one of her conditions had improved and tried to separate her from the TDRL. In reviewing her records, I found a way to re-characterize a Category III condition- not separately unfitting- as separately unfitting and obtained a permanent retirement for her at a higher disability rating.

Now she will be able to complete graduate school and enjoy a great life with her family and friends, secure that her benefits can never be taken away. Sometimes it takes a little extra work or perhaps a little creativity. That is what it is all about, my friend- thinking outside the box.

Was it worth the effort? I think so. Then again, why not ask Meaghan how she feels about it? You can contact her at MEAGHAN555@aol.com.

And, when it comes to thinking outside of the box, that brings us to the fifth step to winning your PEB case- recognizing the importance of non-medical evidence in achieving your goals.

V. The Fifth Step to Winning Your PEB Case is Recognizing the Importance of Non-medical Evidence When Adjudicating Your Case.

One area that most service members being processed through the PEB system fail to understand is the significance of non-medical evidence in deciding your case.

You see, a service member can have a number of health problems that afflict them on a daily basis without being unfit to perform their duties.

If you believe that simply being ill or injured will earn you a disability retirement or severance pay, then you will be very disappointed in the outcome of your case.

In the PEB system, that medical problem must also render you UNFIT to perform your duties if you are to be offered disability severance pay or a disability retirement.

On the other hand, for those who wish to be found FIT, you must show that your injuries do not prevent you from performing your duties.

However, no one really spends much time teaching participants in the PEB process how to generate accurate input from their parent commands to support their cases.

Many Commanding Officers are under the impression that they will be punishing you by describing how much time you miss from the workplace due to your injuries. Actually, quite the opposite is true.

If your command describes you as being able to perform your duties, you will be found FIT even though you may not be able to tie your own shoelaces.

Having solid non-medical evidence describing in a clear and convincing manner how your injuries affect you in the workplace can make or break your case. Just ask Matt Miller.

Matt is a young Marine who was badly injured during martial arts training, but was likely to be adversely affected by the fact that his military duties were as an administrative clerk, a primarily sedentary job.
To win his case, we would need solid non-medical evidence from several sources- friends, co-workers, supervisors, etc.- showing how his injuries prevented him from performing even sedentary tasks.

Once we obtained this evidence, we were able to win Matt the permanent disability retirement that he deserved and send him back home to Oregon to successfully complete his undergraduate degree through the VA vocational rehabilitation program.

Without it, Matt would have come up short of his goals. It required some additional footwork, but it was well worth it. At least I think so.

I believe that Matt would agree with me, but why don’t you ask him yourself? You can feel free to write to him at matt_b_miller@hotmail.com.

Conclusion

As you have seen during the course of this article, it is up to you to aggressively seek out the best advice and representation that you can to achieve your goals in the PEB arena.

It will require some additional effort on days that you may feel as though you cannot even stand up, but in the end it will all be worth it. After all, it is your future- make it a good one.

If you have any questions about this article, please feel free to contact me and I would be glad to be of assistance. In addition, please feel free to forward this document on to anyone whom you feel might benefit from it.

In closing, let me offer my best wishes for your continued success and profound thanks for your service to our country.

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