Jason Perry
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"E3.P1.2.6.1.2. Upon request of a Service member referred into the DES, an impartial physician or other appropriate health care professional (not involved in the Service member’s MEB process) is assigned to the Service member to offer a review of the medical evidence presented by the narrative summary or MEB findings. In most cases, this impartial health professional should be the Service member’s primary care manager (PCM).The impartial health professional will have no more than 5 calendar days to advise the Service member on whether the findings of the MEB adequately reflect the complete spectrum of injuries and illness of the Service member.
E3.P1.2.6.1.3. After review of findings with the assigned impartial health care professional, a Service member shall be afforded an opportunity to request a rebuttal of the results of the MEB. A Service member shall be afforded 7 calendar days to prepare a rebuttal to the convening medical authority. The convening medical board authority shall be afforded 7 calendar days to consider the rebuttal and return the fully documented decision to the Service member. In the case of a MEB rebuttal, the MEB shall not be forwarded to the PEB until the rebuttal is finalized and MEB results indicate the Service member may be unfit for duty. The fully documented rebuttal will be included with the MEB information sent to the PEB. Exception to timelines may be granted by an authority appointed by the Secretary concerned.
E3.P1.2.6.1.4. Medical evaluation participants shall be trained in accordance
with this issuance and existing policy."
The important things to draw from this are as follows:
YOU HAVE TO REQUEST THE IMPARTIAL PHYSICIAN. It doesn't say in this regulation that you have to do it in writing, but I would.
It will likely be your PCM assigned. If your PCM wrote any part of your Narrative Summary, I would object to the PCM being assigned to you for this purpose. Also, consider asking for a specialist if your condition is not of a general nature but requires the expertise of a specialist to accurately review.
Timelines:
Once you ask for it, the Impartial Physician has 5 days to respond. I think that if you just ask them to review, you will likely get poor assistance. Unless there is something glaring, they are likely to just agree. I would consider asking them, in writing, the answer to specific questions. I would not just throw random questions, but specific questions based on your condition, its impact on your function, and specific rating issues. I would also be aware of the issue of the response not helping/hurting your case. I would argue that this is for your benefit, and so should not be used against your interests independently, but it is a much stronger position if you can get an attorney (civilian or JAG) to draft the questions (thus invoking attorney-client work product privilege).
After the 5 days, you then have 7 days to submit a rebuttal to MEB.
The MEB Convening Authority then has 7 days to respond to your rebuttal. The Policy states that all of this will be included in your case file forwarded to the PEB. I think it is proper for the response to be included. This is why I think it is key to have good legal advice before submitting your rebuttal. Again, I have concerns with damaging comments, and I believe that you could invoke the privilege in a subsequent court case. BUT, I strongly suspect that this may not necessarily be successful at the PEB. This will be an interesting issue to see how the courts treat this issue. Key to making this point will be objecting to any damaging info.
I have doubts that the timelines will be adhered to. This policy is like an unfunded mandate. The result of this is to impose more work on the MTF/MEB section but without putting more resources against the problem. We will have to see how this plays out, but note that there are also requirements for the military to stand up more MEBs and PEBs if they fall behind on case processing timelines. This provision may actually provoke this requirement if it is used widely.
I think this is a great tool to use in preparing your case. As this is implemented, we will see how this plays out. Anyone who has experiences, good or bad, and feels comfortable sharing them should post the positives or negatives.
E3.P1.2.6.1.3. After review of findings with the assigned impartial health care professional, a Service member shall be afforded an opportunity to request a rebuttal of the results of the MEB. A Service member shall be afforded 7 calendar days to prepare a rebuttal to the convening medical authority. The convening medical board authority shall be afforded 7 calendar days to consider the rebuttal and return the fully documented decision to the Service member. In the case of a MEB rebuttal, the MEB shall not be forwarded to the PEB until the rebuttal is finalized and MEB results indicate the Service member may be unfit for duty. The fully documented rebuttal will be included with the MEB information sent to the PEB. Exception to timelines may be granted by an authority appointed by the Secretary concerned.
E3.P1.2.6.1.4. Medical evaluation participants shall be trained in accordance
with this issuance and existing policy."
The important things to draw from this are as follows:
YOU HAVE TO REQUEST THE IMPARTIAL PHYSICIAN. It doesn't say in this regulation that you have to do it in writing, but I would.
It will likely be your PCM assigned. If your PCM wrote any part of your Narrative Summary, I would object to the PCM being assigned to you for this purpose. Also, consider asking for a specialist if your condition is not of a general nature but requires the expertise of a specialist to accurately review.
Timelines:
Once you ask for it, the Impartial Physician has 5 days to respond. I think that if you just ask them to review, you will likely get poor assistance. Unless there is something glaring, they are likely to just agree. I would consider asking them, in writing, the answer to specific questions. I would not just throw random questions, but specific questions based on your condition, its impact on your function, and specific rating issues. I would also be aware of the issue of the response not helping/hurting your case. I would argue that this is for your benefit, and so should not be used against your interests independently, but it is a much stronger position if you can get an attorney (civilian or JAG) to draft the questions (thus invoking attorney-client work product privilege).
After the 5 days, you then have 7 days to submit a rebuttal to MEB.
The MEB Convening Authority then has 7 days to respond to your rebuttal. The Policy states that all of this will be included in your case file forwarded to the PEB. I think it is proper for the response to be included. This is why I think it is key to have good legal advice before submitting your rebuttal. Again, I have concerns with damaging comments, and I believe that you could invoke the privilege in a subsequent court case. BUT, I strongly suspect that this may not necessarily be successful at the PEB. This will be an interesting issue to see how the courts treat this issue. Key to making this point will be objecting to any damaging info.
I have doubts that the timelines will be adhered to. This policy is like an unfunded mandate. The result of this is to impose more work on the MTF/MEB section but without putting more resources against the problem. We will have to see how this plays out, but note that there are also requirements for the military to stand up more MEBs and PEBs if they fall behind on case processing timelines. This provision may actually provoke this requirement if it is used widely.
I think this is a great tool to use in preparing your case. As this is implemented, we will see how this plays out. Anyone who has experiences, good or bad, and feels comfortable sharing them should post the positives or negatives.