Important TDIU/TDRL And Election Of Options Questions

PEBMember2017

PEB Forum Veteran
Registered Member
I have a few important questions, the first two I have not seen addressed on PEB Forum:

1. If, while on TDRL and prior to PDRL, the VA grants a 100 percent finding for Total Disability Based On Individual Unemployability, how does that impact the TDRL re-evaluation decision for DOD/PEB? Simply, let's say you have a 70 percent TDRL Rating, but the VA is compensating for 100 percent (extra-schedular) on that VERY same disability, when DOD/PEB go to adjudicate, which would DOD/PEB base THEIR rating/adjudication decision on, 70 or 100?

2. If a service member under 20 years does get a PDRL adjudication, and they elect VA Compensation only and waive DOD retired pay, do they EVER have the option to go back and waive VA pay for their DOD retired pay instead? I understand VA is tax free and that's what most members elect, but ratings can go down in the future - DOD Retired rating/pay is static and unchanging.

3. If evidence shows worsening of conditions during a TDRL re-evaluation, does VA raise ratings for those TDRL conditions or must you specifically request (file a claim for increase to the VA) that they do so?

4. Can you request an early adjudication/finalization of your case when on TDRL?

@Warrior644 @chaplaincharlie @Jason Perry
 

chaplaincharlie

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Individual Unemployability is a VA only option. DoD would be 70 in your example.

You can change your election of VA or DoD through DFAS. It is NOT a one time decision.

Usually DoD does the re-evals. I have heard mixed reports about if that affects VA. I was never TDRL.

You can ask. They may not oblige you.
 

RonG

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I have a few important questions, the first two I have not seen addressed on PEB Forum:

2. If a service member under 20 years does get a PDRL adjudication, and they elect VA Compensation only and waive DOD retired pay, do they EVER have the option to go back and waive VA pay for their DOD retired pay instead? I understand VA is tax free and that's what most members elect, but ratings can go down in the future - DOD Retired rating/pay is static and unchanging.

@Warrior644 @chaplaincharlie @Jason Perry
Yes, a retiree can decline VA compensation at a later date, but why would you want to do that?

If your VA ratings are reduced, that results in a lesser amount of waiver of retired pay. Example:
1. $3000 retired pay with $3200 VA comp = zero retired pay (net) and $3200 VA Comp
2. $3000 retired pay with $1600 VA comp = $1400 residual retired pay (you keep) plus $3200 VA comp.

It is not an “either or situation” as some believe. The retired pay is reduced by the amount of VA comp. Many cases result in what is shown at item 2 above. One does not elect “VA only”. They elect to waive retired pay in the amount of VA comp. That does not always result in total waiver of retired pay.

Ron
 

PEBMember2017

PEB Forum Veteran
Registered Member
Yes, a retiree can decline VA compensation at a later date, but why would you want to do that?

If your VA ratings are reduced, that results in a lesser amount of waiver of retired pay. Example:
1. $3000 retired pay with $3200 VA comp = zero retired pay (net) and $3200 VA Comp
2. $3000 retired pay with $1600 VA comp = $1400 residual retired pay (you keep) plus $3200 VA comp.

It is not an “either or situation” as some believe. The retired pay is reduced by the amount of VA comp. Many cases result in what is shown at item 2 above. One does not elect “VA only”. They elect to waive retired pay in the amount of VA comp. That does not always result in total waiver of retired pay.

Ron
@RonG

Hi Ron, forgive me for being confused, but here's a hypothetical:

A disability retiree is placed on PDRL at 70 percent disability for their conditions. The retiree, who's overall ratings are 90%, or 100 extra-schedular, elects VA.

That person is placed on PDRL, being paid at the VA rate of 90 (or 100) percent.

Five years later, the VA proposes a reduction in ratings down to, say, 0 percent (I'm sure we're all well aware of the horror stories of this happening, especially for younger members).

Then what happens? Is that disability retiree's "retirement" lost? Or are you saying that person would then be compensated at the original DOD retired rating payout of 70 percent?
 

PEBMember2017

PEB Forum Veteran
Registered Member
Usually DoD does the re-evals. I have heard mixed reports about if that affects VA. I was never TDRL.
Thanks @chaplaincharlie, I have heard mixed reports as well. I have heard the VA coming back with higher ratings, reducing ratings, and have also heard the need to request higher ratings from the VA through the process of requesting an increase. I am hoping to get some clarification on this for members who are on TDRL receiving VA compensation, since most times their VA overall rating is higher than that of DOD.

I do know from experience that the bulk of the weight of a disability rating lies within the VA provided DBQ's (Disability Benefits Questionnaire's) for most conditions, however, if you ask any TDRL re-evaluator to complete a DBQ they'll tell you they've never seen one.
 

RonG

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@RonG

Hi Ron, forgive me for being confused, but here's a hypothetical:
A disability retiree is placed on PDRL at 70 percent disability for their conditions. The retiree, who's overall ratings are 90%, or 100 extra-schedular, elects VA.

That person is placed on PDRL, being paid at the VA rate of 90 (or 100) percent.

Five years later, the VA proposes a reduction in ratings down to, say, 0 percent (I'm sure we're all well aware of the horror stories of this happening, especially for younger members).

Then what happens? Is that disability retiree's "retirement" lost? Or are you saying that person would then be compensated at the original DOD retired rating payout of 70 percent? Yes
Your PDRL scenario, using example amounts (not from VA tables or a formula).

1. VA @ 100% = 3200; DoD @ 70% = 3000
2. 3000 retired pay minus (offset) 3200 VA comp figure = zero retired pay but retiree receives 3200 VA comp
3. Later, VA reduces VA rating to 0%
4. Item 3 results in retiree receiving DOD retired pay @ 70% = 3000 each month and zero VA compensation

A simple method to view the process is that the DOD retired pay is there every month, but it is reduced by the amount of VA comp.
It has not “gone” anywhere. I suspect (I do not have a Ch 61 retirement) that a DFAS RAS is not produced for the months that all the retired pay is reduced due to the higher amount of VA comp. A DFAS RAS would be generated for months where less than all the retired pay was reduced/waived.



Ron
 
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PEBMember2017

PEB Forum Veteran
Registered Member
Your PDRL scenario, using example amounts (not from VA tables or a formula).

1. VA @ 100% = 3200; DoD @ 70% = 3000
2. 3000 retired pay minus (offset) 3200 VA comp figure = zero retired pay but retiree receives 3200 VA comp
3. Later, VA reduces VA rating to 0%
4. Item 3 results in retiree receiving DOD retired pay @ 70% = 3000 each month and zero VA compensation

A simple method to view the process is that the DOD retired pay is there every month, but it is reduced by the amount of VA comp.
It has not “gone” anywhere. I suspect (I do not have a Ch 61 retirement) that a DFAS RAS is not produced for the months that all the retired pay is reduced due to the higher amount of VA comp. A DFAS RAS would be generated for months where less than all the retired pay was reduced/waived.



Ron
@RonG

Thanks for the information! I read @Jason Perry 's post about a possible bill for concurrent receipt being extended out to Chapter 61 retirees with less than 20. Hopefully the day is coming soon when election of pay isn't an option and we are properly compensated for both having a career cut short due to disability and a proper VA rating/compensation and deserved health care for those same conditions. Thanks to you both @chaplaincharlie you were a big help as always.
 

RonG

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You’ve targeted the right people with the exception of me. I know little about the PEB process.
My expertise is finance-related (i.e., retired pay; CRSC; CRDP; etc.).

Good luck,
Ron
 

chaplaincharlie

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During a TDRL reevaluation DoD assigns the percentage. One person on this forum, an attorney (not JP - I can't remember his name) claims this is illegal. I am a psychotherapist, so I have no legal opinions. You might search TDRL and find his opinion.
 

PEBMember2017

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During a TDRL reevaluation DoD assigns the percentage. One person on this forum, an attorney (not JP - I can't remember his name) claims this is illegal. I am a psychotherapist, so I have no legal opinions. You might search TDRL and find his opinion.
Illegal in that they are "supposed" to accept the VA/VASRD rating with matching criteria, correct? @chaplaincharlie
 

chaplaincharlie

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The attorney said that DoD had no authority to conduct re-evals. But that was his opinion, I've seen no case law.
 

oddpedestrian

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@PEBMember2017

Something that you may be forgetting is maybe the C&P exam doesn't actually support the VA rating, i.e.

Veteran has a recent VA PTSD C&P exam where question four states the veteran only has occasional decrease in work/social performance a 50% rating but later on list symptoms that support a 70% rating the rater by regulation has to go with the higher of the two if the evidence is conflicting or supports both percentages (This isn't always followed by raters and some claims are just difficult to support one or the other rating so even they may go lower and get overturned on appeal happens a lot but isn't intentional)

The DOD, on the other hand, can state that the social and occupational impairment is actually 50% and the VA exam supports it and maybe some symptoms have changed since the last exam and so forth.

The only caveat is when the DOD tries to push drastically lower ratings like 70-30 which is probably completely baseless but now I'm seeing just one step down ratings so without reviewing the evidence I can't really say who is wrong here.

To be solid here question 4 and the symptoms need to strongly support your 50 or 70% rating on the C&P exam. RSVR or raters don't always make the right call and can over/undershoot ratings. In my case, I had a 50% rating I was disputing with the VA but the DOD thought it was higher and gave me 70% the evidence completely supported it and the VA acquiescence to the DOD and gave me the increase based solely off the DOD decision.
 
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PEBMember2017

PEB Forum Veteran
Registered Member
@PEBMember2017

Something that you may be forgetting is maybe the C&P exam doesn't actually support the VA rating, i.e.

Veteran has a recent VA PTSD C&P exam where question four states the veteran only has occasional decrease in work/social performance a 50% rating but later on list symptoms that support a 70% rating the rater by regulation has to go with the higher of the two if the evidence is conflicting or supports both percentages (This isn't always followed by raters and some claims are just difficult to support one or the other rating so even they may go lower and get overturned on appeal happens a lot but isn't intentional)

The DOD, on the other hand, can state that the social and occupational impairment is actually 50% and the VA exam supports it and maybe some symptoms have changed since the last exam and so forth.

The only caveat is when the DOD tries to push drastically lower ratings like 70-30 which is probably completely baseless but now I'm seeing just one step down ratings so without reviewing the evidence I can't really say who is wrong here.

To be solid here question 4 and the symptoms need to strongly support your 50 or 70% rating on the C&P exam. RSVR or raters don't always make the right call and can over/undershoot ratings. In my case, I had a 50% rating I was disputing with the VA but the DOD thought it was higher and gave me 70% the evidence completely supported it and the VA acquiescence to the DOD and gave me the increase based solely off the DOD decision.
@oddpedestrian Is a veteran able to just submit a VARR (Post TDRL re-eval) to appeal and not have to go before the board? Or how would one go about appealing to the DOD/PEB?
 

PEBMember2017

PEB Forum Veteran
Registered Member
I'm also curious to know if anyone, at any time, can submit medical evidence to the Board/PEB/DOD (even immediately after a TDRL re-eval if an issue arose).
 
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