TDRL for PTSD please help

travisreed

PEB Forum Regular Member
#1
Hello All!
I'm sure this question has been asked before but I can't seem to find an answer in the threads.
BLUF:
Service: Active Duty Army O-4,
TIS:10 yrs 9months
TIG 12 months

I have been rated at 70% for PTSD, 0% for TBI and 10% for a degenerative arthritic condition in my back and will be placed on TDRL with a total rating of 70% if I accept.

My doctor did the TBI worksheet for the MEB & PEB but my PEB results state that my TBI is not severe enough to rate and that my headaches are from PTSD and not TBI (BTW headaches didn't start until after a really bad fall). They basically ignored what my doctor wrote on the TBI worksheet. Board also stated my PTSD was un-rateable because condition may change with in a civilian environment. I have been living with my parents for the last 2 years in a very stable environment (go figure).

I just want out of the Army but I don't want to hose myself.
1) Does anyone know if I can fight their assessment of my TBI when I go back for my re-eval in a year?
2) If I appeal and request a formal board/hearing can my 70% rating be lowered?
Thanks!
-Travis
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
#2
travisreed,

Welcome!

I have been rated at 70% for PTSD, 0% for TBI and 10% for a degenerative arthritic condition in my back and will be placed on TDRL with a total rating of 70% if I accept.

1) Does anyone know if I can fight their assessment of my TBI when I go back for my re-eval in a year?
You can fight it, but basically, you have to argue that the first board got it wrong and you were unfit at the time of placement on TDRL. This can be difficult to do.


2) If I appeal and request a formal board/hearing can my 70% rating be lowered?
It can be lowered. You have some tough decisions to make. On the one hand, there is the risk that they lower your PTSD rating at a formal board (though the lowest you can be rated is 50% for 6 months for PTSD). On the other hand, you may get an additional condition added to your unfit findings and perhaps an increase in compensation (but, remember, the max you can get paid under the law is 75% of your retired base pay....which you need to get an 80% rating to qualify for).
Another option to weigh is the possibility of accepting the findings and later appealing through an administrative board (likely the BCMR). Finally, I would be interested in what VA rating you end up with.

I hope all goes well for you.
 

travisreed

PEB Forum Regular Member
#3
Jason,
Thank you for your insight. I was leaning towards accepting the 70% and having my docs do the write up for the re-eval. I'm not concerned about a 5% difference in pay (70% vs 75%) but I am concerned that a year from now they tell me, "Hey, you have been working for 12 months now. You are okay and we can lower your rating."

As far as the VA, I have been told that by my VA OIF/OEF coordinator that Soldiers/marines/etc with TBI and PTSD get rated at 50% or 100% for the first year and then after that they re-eval and try to get you as close to 100% as possible. Does that sound like anything you have heard before?

BTW what is a BCMR???
-Travis
 

Eric53

PEB Forum Regular Member
#4
The BCMR is the Board for Correction of Military Records. Good luck with your case. I have to ask man would you be interested in maybe getting a lawuit not for the purposes of money because under the feres doctrine we can not get any monetary award from the DOD but filing a lawsuit to bring attention to just how broken this TDRL and the military disability system is as a whole. I am so frustated and angry with this whole process that at this point I am even considering trying to organize a veterans March on Washington for our benefits or maybe even having a veteran's day of civil disobedience next summer where veterans across the country protest outside of the recruiting centers to get someone's attention particuarly the media to shed light and while we have their attention let them know how we as vets are being done wrong. Give me your thoughts anyone. If I am off base tell me. If you agree let me know that as well. I would like to hear from everyone on this subject. Happy Veterans Day and Goodluck to all on winning their cases.:D
 

travisreed

PEB Forum Regular Member
#5
I'm not too sure about a lawsuit but I spoke with a JAG officer at the Office of Soldier Counsel. He stated that right off the bat, my TBI should have at least been given a 10% by the Army. Yes, they can lower my percentage (as Jason mentioned), and that everyone of the PTSD cases he has seen is given the blanket 50% rating with TDRL. After talking to him, I decided to request a formal board board that I will appear at. I figure if they lower my PTSD to 50% that still leaves me with 10% Back or 10% TBI. Either of those 10% ratings would get me 5% off of the remaining 50% and round up to 60%. I think 10% risk is worth the formal board. Plus, the Board was very choosy about what the chose IOT determine a non-rating for TBI.
I'll keep you guys posted...because if it's happening to me, it's happening to Privates and Specialists who give carte blanch to this process.
 

mascabn

PEB Forum Veteran
#6
Eric53, The system is broken, something needs to be done. It's only going to get worse as the military comes home. Maybe a discussion should be initiated as to the best approach. I personally don't like the idea of a 60's style rebellion. What about the lawsuit?
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
#8
I have to ask man would you be interested in maybe getting a lawuit not for the purposes of money because under the feres doctrine we can not get any monetary award from the DOD but filing a lawsuit to bring attention to just how broken this TDRL and the military disability system is as a whole.
Eric53,

One clarification about the Feres Doctrine. It prohibits suing the military for Tort actions. However, lawsuits can be maintained for denial of compensation and benefits. It will take a lengthier post to explain this, but a "general grievance" type of lawsuit is unlikely to win. You need specific plaintiffs with concrete (legal) injuries to win...this is a real simplification of issues such as "standing" and "case or controversy" predicates to filing suit.



Give me your thoughts anyone. If I am off base tell me. If you agree let me know that as well. I would like to hear from everyone on this subject. Happy Veterans Day and Goodluck to all on winning their cases.:D
I completely agree that there is a lot "broken" about this system...it takes a lot of determination to fight these issues, but we need more accountability over this system, not less.

Thanks for your thoughts and Happy Veterans Day to you as well!
 

travisreed

PEB Forum Regular Member
#9
Jason et al,
Thank you all for your help and insight! After talking with JAG I am going forward with a formal board in an attempt to get my TBI rated and push my rating over the 80% threshold for PDRL as opposed to TDRL. Things I have learned:
1) Always talk to a lawyer whether its is JAG, Disabled American Vets (DAV), or Wounded Warrior Project etc

2) You are absolutely correct about not arguing for a rating and trying to get it rated on the re-eval. You are basically hosing yourself because the re-eval board will ask, "Why didn't you argue this 6 months ago?"

3) Don't give up the fight for your disability rating. A few weeks waiting for a formal board is better then being stuck with a sub-par rating and being angry about it for the rest of your life.
 

greenne

PEB Forum Veteran
Registered Member
#10
Could someone please explain the "80% threshold" mentioned in the previous post concerning TDRL/PDRL?

The reason I ask is I have PTSD, TBI and Sleep Apnea which may put me close to 80% or over. Would this mean if (big IF here) the AF accepts all and I bump 80% it is automatic PDRL vs TDRL (even with PTSD)?

My VA narrative described all 3 sufficiently....lets hope the NARSUM does it justice and more hope the IPEB finds them UNFITTING.

Nate
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
#11
DoD Instruction 1332.38 states:
"E3.P6.1.2. Except for cases processed under imminent death procedures, members with unstable conditions rated at a minimum of 80 percent and which are not expected to improve to less than an 80% rating, shall be permanently retired."

The services have implemented this in their DES regulations. The Army has done this under AR 635-40, Para. 4-19, h.: " Deciding permanency of disability.
(1) Based on accepted medical principles, a disability is“permanent”, and a Soldier who is otherwise qualified will be permanently retired, if—
(a) The defect has become stable so that, with reasonable expectation, the compensable percentage rating will remain unchanged during the following 5-year period.
(b) The compensable percentage rating is 80 percent or more and the disability will probably not improve so as to be ratable at less than 80 percent during the following 5 years."

This presents some interesting possible factual situations that may qualify.

Example: Member is unfit due to his PTSD (unstable, 50%), Flail elbow ( stable, 50%), Back (stable, 40%), and Asthma ( stable,30%). This would result in a combined 90% rating. However, if you take out the PTSD, the result is 80%. So, no matter what happens, the member is expected to stay at 80%. This member should clearly be placed on PDRL.

Example: Member is unfit due to his PTSD (unstable, 50%), Flail elbow ( stable, 50%) and Asthma ( stable,30%.) This would result in a combined rating of 80%. However, if you strip out the PTSD, the rating is only 70%. In this case, getting an increase in the two stable conditions or adding in an additional condition (his unrated back, for example), may bring him above 80% and should then result in a PDRL finding. The only other option would be to successfully argue that the PTSD is only likely to improve to a 30% level under any circumstance (thus resulting in 50%, 30%, 30% ratings, which when combined equal 80%). Then the member should be placed on PDRL.

Example: Member is rated at 80% due to Amyotrophic lateral sclerosis (ALS). Because this disease is considered progressive, the likelihood is that it will not improve to less than 80%. Therefore, this member should also be placed on PDRL.

A few comments. Remember, 75% is the most you can receive in compensation, so a higher rating is not helpful from a monetary point of view. Also, note that while you may be successful in convincing the PEB to change their minds about stability, generally, this does not happen and successfully appealing these decisions after the PEB is an extreme long shot. This means it is important (well, this is always so) to weigh the risks and benefits of challenging a TDRL decision.
 

greenne

PEB Forum Veteran
Registered Member
#12
So, how could this go...

TBI(stable--40%) + Sleep Apnea (stable--50%) + Migraines (stable--30%) == 79% (rounded to 80%)

Would this qualify for PDRL..even if the member is rated for PTSD? Have seen any Air Force cases like this..mandatory PDRL? Another question...are Migraines generally rated stable or unstable? Another condition I have is vertigo--30%.

Nate
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
#13
Nate,

Migraines, unless they are long standing, have not changed and your medication has remain unchanged for a period of time (probably a year or more), are likely to unstable. TBI would likely be unstable, as would vertigo, unless they are longstanding conditions with little change.

I have only come across one or two cases where this was an issue. You have to recall that getting an 80% rating or higher is a pretty rare occurrence in the first place.
 

greenne

PEB Forum Veteran
Registered Member
#14
Got it. The migraines and vertigo appeared after the TBI. They haven't improved in 18 months since the injury, but who knows.

Still a lot of uncertainty here--I get that from my Drs as I keep going to therapy and trying real hard, yet I'm not really improving....TBI/vertigo/Migraines. I just don't know at what pt you crossover from improvement to a longstanding(or likely permanent) condition. I know that blast injuries are particularly tricky....

Nate
 

AFChain80

Registered Member
#15
Hello I was placed on TDRL for TBI 70%,PTSD 50%, and headaches due to TBI 30% which gave me a combined rating of 90%. will I be re-evaluated on all three conditions in six months or just the PTSD? thank you.
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
#16
Hello I was placed on TDRL for TBI 70%,PTSD 50%, and headaches due to TBI 30% which gave me a combined rating of 90%. will I be re-evaluated on all three conditions in six months or just the PTSD? thank you.
According to the regulations, you should be evaluated on every condition. However, I have seen the services try to claim only the conditions found unstable will be re-evaluated. This may be a point of appeal if there is an argument that your other (supposedly) stable conditions are not reviewed and they support a higher rating. You should do your best in the interim to gather evidence showing the severity of your condition.

Best of luck! Hope this was helpful!