Title 10 US Code,Sec. 1202. "Regulars and members on active duty for more than 30 days: temporary disability retired list Upon a determination by the Secretary concerned that a member described in section 1201(c) of this title would be qualified for retirement under section 1201 of this title but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall, if he also determines that accepted medical principles indicate that the disability may be of a permanent nature, place the member's name on the temporary disability retired list, with retired pay computed under section 1401 of this title."
What does this mean? First, the Board must find the member would be qualified for retirement except for the condition being not stable. This means the member must be rated at least 30% disabled. Second, the Board must find that the condition is not stable, but that accepted medical principles show the condition may be permanent. How do you determine if a condition is unstable? DODI 1332.38, para. E3.P6.1.1.,says that "A disability shall be considered unstable when the preponderance of medical evidence establishes that accepted medical principles indicates the severity of the condition will change within the next five years so as to result in an increase or decrease of the disability rating percentage or a finding of fit." Many conditions qualify for TDRL. Experience has shown that conditions the Board typically considers prime candidates for being unstable are Migraines, Asthma, Back and Neck Conditions, Nerve Damage, and Mental Disorders.
Remember that placement on the TDRL is limited to 5 years. Also, Servicemembers will receive a minimum of 50% while on TDRL.
I see two common issues that confront TDRL Soldiers. The first oftentimes comes up with Soldiers who have never gone to a formal Board because they accepted the original informal Board's findings when they were placed on the TDRL. These Soldiers sometimes do not have evidence showing the severity of their conditions so when they go for their TDRL re-evaluation physical after approximately a year, they are often rated lower by the Board. This can result in them being seperated with severance pay and losing their Tri-Care. In many cases the difference in the benefits can amount to hundreds of thousands of dollars. This can happen even though factually they may be in the same condition or worse than when they were originally placed on TDRL. Why do they get a lower rating? Because the Board needs supporting evidence to make an award. But many times the Soldier no longer has current documentation of their condition. On active duty, the Soldier often had detailed records and good documentation. But after being temporarily retired, Soldiers circumstances often change. Sometimes there is no Troop Medical Clinic or Military Treatment Facility (MTF) nearby and they may not be able to take time off from work to get proper treatment. The result is that their records are sparse and the Board has no evidence to support a higher rating. As a result the Soldier loses their benefits. This is especially prevalent with Asthma and Migraine cases. I cannot stress enough how important it is to have evidence of your condition over a minimum of several months. It is not nearly as helpful to document one or two pieces of evidence right before the formal Board. Recent evidence without any previous documentation can sometimes be viewed by the Board as being manufactured or untrue. In order to prevent this, Soldiers need to get documentation of their condition, especially within the 4-5 months prior to their re-evaluation. Soldiers need to go to their medical appointments, pick up their prescriptions, and comply with their treatment plan.
The next common issue I see is with Soldiers on TDRL is damaging statements at the TDRL re-evaluation physical. Typically, Soldiers don't even realize the little things that can hurt them. Talking about their work situation without fully explaining what their limitations are can have a devastating effect. An example is a Soldier placed on TDRL for a mental disorder who simply states, "I am working fulltime." If this is recorded on the re-eval physical this way, the Board has the impression that the Soldier is not that impaired. Other facts that may have been helpful? How long the Soldier has been at the job? What limitations they have at work due to their condition? Do they miss work often due to their condition. How are their evaluations? How many times have they changed jobs in the last year? If the answers to these questions indicate impairment, this can mean the difference between a 10% and a 0% rating (or even a fit for duty finding).
TDRL can only last up to five years. After five years, the servicemember must be either permanently retired, separated with severance pay, or found fit (which can mean either administrative separation or opportunity to re-enlist). Cases are re-evaluated every year to eighteen months. If the MEB indicates the servicemembers condition has stabilized, then they will forward that to PEB for final disposition. The informal PEB, if it finds the Servicemember's condition has stabilized, will then rate the conditions. If less than 30%, the result will be separation with severance. If higher than 30%, then the result will be permanent disability retirement. And if the conditions are no longer unfitting, the veteran can then separate administratively or re-enlist. If the PEB finds the condition has not stabilized, they cannot change the rating. If the servicemember does not agree with informal, they can demand formal at this point.
As far as how to document migraines, I would point out that every one agrees that stopping what you are doing and seeking immediate medical care meets the definition of a prostrating migraine. For Soldiers, they can use the guidance in the policy letter to document prostrating attacks. If you ask me, the going to the emergency room, while maybe pointless from a medical treatment point of view, is probably the better course of action to ensure that the migraines are properly rated by the PEB. Soldiers should be aware of the policy, though, and that it offers an alternative. I cannot emphasize enough though that if you intend to rely on the policy letters guidance, you should follow it to the letter. Close is not enough.
If he was on TDRL, the minimum he can be paid by law is 50%. What is sometimes confusing is that the minimum rating to be placed on TDRL is 30%. So, he could have been rated at 30%, but paid 50% of his retired base pay, and still have been rated completely differently (or not at all if he didn't file) by the VA.
Thanks for the reply Jason, the 30% was on his 199, I and he assumed he was getting 30%. Thanks for the clarification. But as I understand you is, that no matter what is on your 199 you still get 50% while on TDRL.
Let's say you get rated 30% and get put on TDRL. You get paid 50% retirment pay, because that's the minimum allowed. Now after 5 years they move you to PDRL, but let's say your rating remains the same 30%. The calculation for the two appear to be different, but do you still get paid the minimum of 50%, or does it get bumped up to a new minimum set for PDRL?
EDIT: I found my asnwer on VBN. You only get a minimum of 50% on TDRL, on PDRL you get whatever percentage they give you.
There is an exception to the rule, though. Remember, you can get higher if you have a higher percentage under the length of service calculation (2.5% times years of service). So, for example, if you are given 30% rating for your condition and placed on PDRL, but you have 16 years, you should get paid at 40%. If this same Servicemember were placed on TDRL for conditions rated at 30%, he would get paid 50%, while on TDRL. If later placed on PDRL with the same conditions stabilized at the 30% rating, he should be paid at 40%.
That's a very simple system. I think I would fight to get PDRL just for the benefits and then try to get paid a higher, tax-free rate through the VA. That works for me as an E-4, but if I were approaching this as someone with many more years it, I would have to take a careful look at the cost differences between the two, especially the after-tax net income from PDRL.
Once you've done a little bit of homework, this becomes very easy. Now who do we have to thank for that?
... many times the Soldier no longer has current documentation of their condition. On active duty, the Soldier often had detailed records and good documentation. But after being temporarily retired, Soldiers circumstances often change. Sometimes there is no Troop Medical Clinic or Military Treatment Facility (MTF) nearby and they may not be able to take time off from work to get proper treatment. The result is that their records are sparse and the Board has no evidence to support a higher rating. As a result the Soldier loses their benefits. This is especially prevalent with Asthma and Migraine cases. I cannot stress enough how important it is to have evidence of your condition over a minimum of several months. It is not nearly as helpful to document one or two pieces of evidence right before the formal Board. Recent evidence without any previous documentation can sometimes be viewed by the Board as being manufactured or untrue. In order to prevent this, Soldiers need to get documentation of their condition, especially within the 4-5 months prior to their re-evaluation. Soldiers need to go to their medical appointments, pick up their prescriptions, and comply with their treatment plan....
One thing the SM can do is to keep a migraine log/diary and document every episode. Include in the log the medicines prescribed and dosage. Be sure to update this section whenever the dosages or medicines change. Describe the episode, including the severity, the duration, what triggered the episode or what the conditions were immediately preceeding the episode. Also include a notation on how it affected their job. (e.g., did it occur on the job and result in lost productivity for their employer, did it prevent them from going to work, etc.) Then take this diary/log to every doctors appointment and show the log to the doctor. Once the doctor reviews the log, they will usually include the patient reports in their notes. Then the SM can provide the patient records to the board for the documentation needed.
The statements you made Jason regarding not getting the proper care on TDRL are spot on. If you are on TDRL make sure you are educated. After I was put on TDRL and left service I was not assigned a PEBLO and had no one to answer my questions.
At my second evaluation, the doctor I saw at Camp Pendleton was a reservist and when I walked into his office he asked me what I was here for. I explained to him that I was on TDRL and he didn't even know what that was. He asked me what he was suppose to do! I was dumbfounded and he told me he would take care of it. I was on TDRL for Type 1 Diabetes and this doctor did a "full and thorough" examination of the condition in under 5 minutes. From the time I was in his office to the time I left was around 7 minutes. I left that place with a bad feeling.
The board reviewd my case and guess what, they moved me from 40% to 20%. I then went requested a FPEB, went to Washington and testified. I explained the incompetencies of the medical doctors and all the issues regarding my condition. After months of deliberation, I was given 40% PDRL.
It was a long drawn out and stressful process that could have easily been avoided if the military trained the doctors how to handle TDRL cases and if I would have better educated myself about the process and told the doctor what needed to be done in a more proper and systematic way.
Thought I would share that stuff like that does happen.
Thanks for sharing that experience. Your experience with the TDRL re-exam really shows a systemic problem with MEBs and TDRL re-exams in general. That problem is that there is not much training for military doctors on the administrative requirements and importance of the MEBs/re-exams and the MEBs are de-centralized. What that means is that you can end up with very inconsistent results depending on what doctor at what MTF prepares the medical evaluation/NARSUM.
Contrast this with the PEB, which tends to give more consistent results because they are centralized. What ends up happening is that in some cases, the PEB will kick back a sub-standard MEB to the MTF for correction. However, a real problem with the PEB as "gatekeeper" is that the doctor doing the eval at the MTF has eyes on the patient and is is a much better place to make a judgment about a Servicemembers physical condition than the IPEB, who only has the records (including the substandard eval) in front of them with which to make a judgment. I don't know that you can centralize the MEBs any more, because the doctors have to be out at the MTFs, but I think it is important to realize the issue and to understand through cases like yours that the MEB is a very important step in the process and getting accurate info in the records is key to a good result.
Thankfully, you were able to get an ultimate good result. Thanks for sharing your story!
. I was on TDRL for Type 1 Diabetes and this doctor did a "full and thorough" examination of the condition in under 10 minutes. From the time I was in his office to the time I left was around 8 minutes. I left that place with a bad feeling.
The Navy reviewd my case and guess what, they moved me from 40% to 20%. I then went requested a FPEB, went to Washington and testified. is their anyone out there can help me with this.
Ok, I just got my letter and they are placing me on TDRL with 60%. I have lung disease due to the sulfur fires in Iraq 2003. This all just came threw today so we still have our 10 days for review. I was looking for help in the pros and cons of TDRL. At this point I am looking for any advice. Thank you.
First, I think it is important to recognize that it is very difficult to convince the PEBs to change their mind regarding the TDRL vs. PDRL determination.
The biggest con is the fact that the TDRL is a temporary finding. At the re-evaluation, you may be found stabilized and retired, continued on TDRL (for up to 5 yeards total), stabilized and separated, or found fit.
I think the other question to ask is what outcome would you be looking for? If you want a higher rating, I think you should also consider the interaction between your military compensation and VA compensation. This will be fact specific based on your years of service. Did they make a finding regarding whether your injuries were "combat-related"? I know some about the sulfur-fires, depending on the circumstances of what you were doing, there may be an argument that you should be considered "combat-related" both for military disability compensation purposes and for CRSC, which will then further impact your decision.
Thank you so much for the info. It is believed that they put me on TDRL since my breathing test are not stable and continuing to get worse. They did not put it combat related and I believe we are going to appeal that. I was at Q-West and was a crew chief on the Black hawk helicopter. We flew threw this fire all the time. I currently only have 50% lung function. Any advice in getting the combat related changed?
Like most things in this system, it is all about having good evidence.
Letters from commander or superiors documenting your being there and the circumstances, flight logs, AAR's, etc. That type of stuff would help getting you to the exposure part.
I would also think it would be helpful getting evidence of symptoms soon thereafter (sick call slips, statements from others documenting symptoms, LODs, etc.). Or perhaps an opinion letter from a pulmonologist (or other MD if you can't find a respiratory specialist) stating an opinion that your condition was caused by the exposure.
If you have an LOD that states your condition was caused by flying over fumes, I think you may have enough evidence right there. Of course, the question then becomes if they believe these facts equals "combat-related." If the facts are not in dispute, then it is a legal argument that you are disagreeing about.