Update on Army policy on TDRL placement

The Army Physical Disability Agency has published a memorandum modifying the standard used in determining placement on the Temporary Disability Retirement List (TDRL). You can download the entire memo here: Medical Principles: Presumption of Soundness - Downloads - Physical Evaluation Board Forum . Though the memorandum clearly states that a member will be permanently retired unless it is shown by clear and convincing evidence that the members condition is likely to change over the next five years, I believe that there is a confusing and possibly erroneous explanation of this policy contained in the guidance.

The relevant portions are excerpted here:

"Part II: Placement on the TDRL
There are two types of PDES cases. The first type is the “legacy” case. In this type of case, the PEB assigns the disability rating. The second type of PDES cases is the “DES Pilot case” or other cases where the VA assigns the disability rating. Pending finalization of the TDRL Policy for DES Pilot cases and other cases where the VA assigns the disability rating, it appears the standard for placement on the TDRL (for these cases) will be that “a disability shall be considered unstable when there is clear and convincing evidence based on accepted medical principles that the VASRD rating percentage is likely to change within the next five years.”
Even though DoDI 1332.38 indicates the standard for placement on TDRL is “preponderance of the evidence,” as a matter of PDA policy, the standard for both types of cases will be “clear and convincing” as set forth in the draft policy...

With reference to the clear and convincing evidentiary standard, when the PEB determines the evidence does not support that the Soldier’s condition will change over the next five years so as to result in a change in VASRD rating, the PEB will recommend the Soldier be permanently retired.

Pre-decisional draft Temporary Disability Retirement List (TDRL) policy.
2. PROCEDURES
1.1. Unstable. A disability shall be considered unstable when there is clear and convincing evidence based on accepted medical principles that the VASRD rating percentage is likely to change within the next five years."

Regarding "clear and convincing evidence," this is one explanation:
"The 'clear and convincing' standard of proof is an intermediate standard of proof between 'preponderance of the evidence' and 'beyond a reasonable doubt,' see Addington v. Texas, 441 U.S. 418, 424, 60 L. Ed. 2d 323, 99 S. Ct. 1804 (1979), and is used when the individual interests at stake are more substantial than those in a typical civil dispute." Olson v. Brown, 5 Vet. App. 430, 434 (Vet. App. 1993)

Here is another explanation (this case was later overturned, but not for any reason having to do with this definition): "Although "clear and convincing" evidence is not defined in reference (c), it is generally defined in law dictionaries as the degree [*865] of proof which will produce in the mind of a fact finder a firm belief or conviction." Sawyer v. United States, 18 Cl. Ct. 860, 864-865 (Ct. Cl. 1989)

What I have concerns about is this section:

With reference to the clear and convincing evidentiary standard, when the PEB determines the evidence does not support that the Soldier’s condition will change over the next five years so as to result in a change in VASRD rating, the PEB will recommend the Soldier be permanently retired.
I think this can be confusing, because the phrase "evidence does not support" could be misconstrued to mean that the PEB must determine that it is more likely than not that the condition will not change before recommending placement on the TDRL. If read and applied this way, that standard would require that the PEB find only by a preponderance that it will change in order to place the member on TDRL. The reality is that the PEB must find by clear and convincing evidence that the condition will change for rating purposes or else it must permanently retire the member.

One other point. It seems to me that the additional requirement that "there is clear and convincing evidence based on accepted medical principles" to place the member on TDRL means that there must be some citation to these principles. It is unlikely that the PEB will be able to find such evidence and will very likely not provide this evidence in its rationale. Therefore, in the Army, I think that TDRL determinations will be highly susceptible to challenge. Especially in these cases, if someone were to challenge a TDRL placement, I would strongly consider filing suit in Federal Court.
 
Jason Perry

Comments

AGRGrape

Registered Member
#41
Not sure if there was a specific part of this that you were referencing, but my quick review did not see anything that would support a TDRL finding (by clear and convincing evidence standard)...Remember, there are two things that must be shown, 1) that the condition will change 2) enough to make a difference for rating purposes. I have a hard time seeing how they can show outcomes for mental health conditions with enough precision to show that it will change a rating.

Also, it seems to me that they can't argue that something will EITHER get better or worse....they will need to show one or the other. Because there are different outcomes for PTSD (some people get worse, some better), I do not see how they can show TDRL by clear and convincing evidence.
Hi Jason,

First thank you for this bit of information. I have been found unfit for duty due to PTSD. Currently I'm waiting on the VA's rating and my retirement decisions.

Am I correct in interpreting that most likely PTSD may end up in PDRL instead of TRDL because there is no telling if the Soldier will get better?
 
#42
Im sorry for jumping in like this but I'm on TDRL and my 5 year mark is june/july and they are flying me to Hawaii to do the exam. I want to be found "fit for duty" and I'm prepared to fight for it, however i have not been able to contact my PEBLO or Legal even though I've emailed them both numerous times. So i wrote my Congressman to see if he could do anything since he was a JAG lawyer for the Army. My separation code is SFK, Separation authority is AR 635-40 Par 4-24B (2) the narrative reason for separation is disability, temporary and my re-entry code is 4. I have not even filed for VA disability and only saw a VA psychiatrist and psychologist for maybe 3-4 months out of the entire 5 years, I got a 50% rating from the DOD for PTSD and minor Post Concussive Syndrome however both have gotten dramatically better in the last 5 years and I'm ready to go back to active duty as a 12B Combat Engineer but if its possible i would LOVE to change my MOS to 11B, but I will take whatever they give me. Do you guys have and recommendations for what all i should be doing right now and what are my chances of getting back in?
 

SSG Nosnikta

Registered Member
#43
I NEED HELP! I am going to post the short version of the facts, then ask for guidance.

Entered Military in Sept 85
Went to Desert Storm/Shield
Went to OEF/OIIF 4 in Nov 2004
Med Evacced home April 2005
Went to MEB, got 30% from Army, placed on TDRL at 20 yrs 11 mos.
At this point, I was receiving retired pay and VA at 70%
Feb 2008, placed on PDRL. Retired pay was stopped. VA continues.

When I asked DFAS why my pay was stopped, they told me it was because I was a Reservist, and that I had been retired from the Reserve. Therefore I will resume receiving retired pay at age 62. I retired from ACTIVE DUTY, not the Reserve. Once a Reservist is activated, they become an Active Duty soldier and are the same as any other active duty soldier, except that they can be deactivated and sent back to the reserve. But i was on active duty when I retired.

Can someone please explain to me why I don't get my retirement pay as concurrent receipt now, instead of when I am 62? I am considered on PDRL.

Thanks
 

scoutCC

PEB Forum Veteran
Registered Member
#44
There are two types of retirement pay.

Length of Service retirement
- 20 years of active duty service gets immediate receipt.
- 20 years of reserve service starts at age 60 (or sooner under certain conditions)

Chapter 61 retirement (for disability)
- Chapter 61 disability pay get immediate receipt

You can only receive one of these types of retirement, LOS or chapter 61. CRDP is for concurrent receipt of a LOS retirement and VA pay. CRSC is for concurrent receipt of either type of retirement, but only for combat related injuries. You can only get one, CRDP or CRSC.

As a reservist you are not ordinarily eligible for Chapter 61. However, disabilities incurred or aggravated during an active duty period make you eligible for those conditions. In that sense you are like any other active duty Soldier. However that doesn't convert all your reservist years over to active duty years to make you eligible for a 20 year active duty LOS retirement.
 
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