Jason Perry
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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:
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.
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:
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.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.
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.