Jason Perry
Founder and Leader
Site Founder
Staff Member
PEB Forum Veteran
Lifetime Supporter
Registered Member
I recently appeared at a PEB for a client with migraines. He had a well detailed migraine log showing migraines several times per month. The only question was whether these migraines were "prostrating."
In the past, the definition of "prostrating" was clouded by the the now rescinded DoDI 1332.39, which defined prostrating as requiring the member to stop what they are doing and seek medical attention. I have always been concerned that PEB members who have been around at the time of that regulation have kept that definition in the back of their minds when adjudicating cases.
Oftentimes, before a Formal PEB hearing, I have an opportunity to speak with the PEB members (this can be when submitting exhibits, or just chatting). At this recent PEB, I pointed out during such a chat that the migraine log showed frequent migraines, so the only issue was whether these qualified as "prostrating." I then asked if the PEB had any position on what definition they were using for "prostrating." The PEB member asked me, "what definition do you think we should use?" Having considered this beforehand, I supplied an example from a Board of Veterans Appeals case that defined "prostrating" (from Dorland's Medical Dictionary) as "extreme exhaustion or powerlessness." (I submitted the BVA opinion as an exhibit).
The PEB accepted this definition (and quoted from it in its rationale). I point this out so that members are aware of this issue. What I would point out is that it is not clear that the PEBs are using a uniform definition and that it makes sense to argue (with support) the definition.
Hope this helps.
In the past, the definition of "prostrating" was clouded by the the now rescinded DoDI 1332.39, which defined prostrating as requiring the member to stop what they are doing and seek medical attention. I have always been concerned that PEB members who have been around at the time of that regulation have kept that definition in the back of their minds when adjudicating cases.
Oftentimes, before a Formal PEB hearing, I have an opportunity to speak with the PEB members (this can be when submitting exhibits, or just chatting). At this recent PEB, I pointed out during such a chat that the migraine log showed frequent migraines, so the only issue was whether these qualified as "prostrating." I then asked if the PEB had any position on what definition they were using for "prostrating." The PEB member asked me, "what definition do you think we should use?" Having considered this beforehand, I supplied an example from a Board of Veterans Appeals case that defined "prostrating" (from Dorland's Medical Dictionary) as "extreme exhaustion or powerlessness." (I submitted the BVA opinion as an exhibit).
The PEB accepted this definition (and quoted from it in its rationale). I point this out so that members are aware of this issue. What I would point out is that it is not clear that the PEBs are using a uniform definition and that it makes sense to argue (with support) the definition.
Hope this helps.