TDRL Rating Increase Question

C

carlct027

PEB Forum Regular Member
Registered Member
In Feb 2023 I was medically retired at 50% for PTSD; in Sep 2023 I appealed my rating with the VA and got 70% for PTSD. From my understanding, the DoD is going to bring me in for re-evaluation (sometime in Sep 2024) in order to add me to the PDRL. Will I be added to PDRL with the 50% that I left the Army with, the 70% that im currently rated at with the VA, or frankly just whatever the evaluator determines based on the meeting in Sep 2024?

Is there anything I can do to advocate for getting the 70% PDRL?

I cannot get a straight answer from the TDRL branch. If I hear back from anyone, I'll have some follow up questions. Thanks in advance for the support
 
Yeah, this is a huge issue.

Here's an excerpt from a lawsuit I filed:

DoD Manual (“DoDM”) 1332.18, Volume 1, proscribes the process for adjudicating IDES cases. Included in the regulation is a description of the process to be followed in TDRL cases:

“10.4. TDRL REEVALUATION. VA will conduct exams and prepare rating decisions for veterans who were temporarily retired for disability in accordance with VA laws and regulations. VA will provide a copy of the most current rating and the medical evidence upon which the most current rating is based in accordance with Section 7332 of Title 38, U.S.C. If VA does not provide examination and rating information sufficient to adjudicate the veteran’s case or if the most recent VA exam is older than 18 months, the Military Department will execute required TDRL examinations and ratings in accordance with Title 38, CFR.” Id. (Emphasis added).

DoD Instruction (“DoDI”) 1332.18 states:

“9.2. TDRL RE-EVALUATION. The TDRL will be managed to meet the requirements for periodic disability examination, suspension of retired pay, and prompt removal from the TDRL pursuant to Chapter 61 of Title 10, U.S.C., including reexamining temporary retirees at least once every 18 months to determine whether there has been a change in the disability for which the member was temporarily retired. For Service members diagnosed with behavior disorders because of traumatic stress, the reexamination will be scheduled within 6 months from the date of placement on the TDRL, but completed no earlier than 90 days after placement on the TDRL.

A. Initiating the TDRL Re-evaluation Process. (1) No later than 16 months after temporarily retiring a Service member for disability or after their previous re-evaluation, the Military Department will obtain and consider available DoD medical treatment documentation, VA or veteran-provided medical treatment documentation or the disability examination that occurred within 16 months of the member being placed on the TDRL, and rating documentation.” Id. (Emphasis added).
 
Mr. Perry,

Thanks for writing back. I have an update. Today I spoke with a VA representative who "accidently" mentioned that an internal VA memo was sent out the day before my percentage was increased stating that "I would be removed from ROUTINE RE-EXANINATIONS". This suggests that the VA is aware of my position and are intentionally stonewalling me from receiving a re-examination that could confirm my current ratings as static. I put in a FOIA for the memo. I'll keep posting updates for others who are going through this.
 
carlct027 said:
Mr. Perry,

Thanks for writing back. I have an update. Today I spoke with a VA representative who "accidently" mentioned that an internal VA memo was sent out the day before my percentage was increased stating that "I would be removed from ROUTINE RE-EXANINATIONS". This suggests that the VA is aware of my position and are intentionally stonewalling me from receiving a re-examination that could confirm my current ratings as static. I put in a FOIA for the memo. I'll keep posting updates for others who are going through this.
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I was retired at 70% PTSD and placed on TDRL. I was 100% P&T from the VA so no reexamination from the VA even for the PTSD - I had 100% in static injuries in addition to the PTSD. That means my re-exam was left up to the Army. I did a 40 minute phone interview with Fort Lewis (I live in California). I was then moved to PDRL at 70%. That exam and my VA records is what the PEB used to determine the final rating.
 
Jason Perry said:
Yeah, this is a huge issue.

Here's an excerpt from a lawsuit I filed:

DoD Manual (“DoDM”) 1332.18, Volume 1, proscribes the process for adjudicating IDES cases. Included in the regulation is a description of the process to be followed in TDRL cases:

“10.4. TDRL REEVALUATION. VA will conduct exams and prepare rating decisions for veterans who were temporarily retired for disability in accordance with VA laws and regulations. VA will provide a copy of the most current rating and the medical evidence upon which the most current rating is based in accordance with Section 7332 of Title 38, U.S.C. If VA does not provide examination and rating information sufficient to adjudicate the veteran’s case or if the most recent VA exam is older than 18 months, the Military Department will execute required TDRL examinations and ratings in accordance with Title 38, CFR.” Id. (Emphasis added).

DoD Instruction (“DoDI”) 1332.18 states:

“9.2. TDRL RE-EVALUATION. The TDRL will be managed to meet the requirements for periodic disability examination, suspension of retired pay, and prompt removal from the TDRL pursuant to Chapter 61 of Title 10, U.S.C., including reexamining temporary retirees at least once every 18 months to determine whether there has been a change in the disability for which the member was temporarily retired. For Service members diagnosed with behavior disorders because of traumatic stress, the reexamination will be scheduled within 6 months from the date of placement on the TDRL, but completed no earlier than 90 days after placement on the TDRL.

A. Initiating the TDRL Re-evaluation Process. (1) No later than 16 months after temporarily retiring a Service member for disability or after their previous re-evaluation, the Military Department will obtain and consider available DoD medical treatment documentation, VA or veteran-provided medical treatment documentation or the disability examination that occurred within 16 months of the member being placed on the TDRL, and rating documentation.” Id. (Emphasis added).
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Sir

I contacted Ed Mercanti and explained him my situation, he suggest me to talk to you. Please advice.
Regards
 
Feel free to reach out—my contact information is in my profile, or you can go to www.peblawyer.com, and my Legal Assistant, Ms. Martinez, will be happy to set up a time to talk.
 
I tried to send you a message on Monday, May 13th , but it gave an error that said: " You may not start a conversation with the following recipient: Jason Perry"
 
Ok. I read your profile (very interesting, btw) and I found what you were referring to, I got your contact information now. I'll be reaching you soon. Thank you for your prompt response.
 
I have an update and a question if anyone is out there still. NOTE: I am only referring to "PEB reffered" rating(s) in this message.

Update: I'm still TDRL; in OCT 2024 I received a higher level review from the VA, in which my "PEB reffered" condition was found to be "static" at 70%. This is an increase from the 50% I left the Army with. After sending in my VA code sheet, the TDRL branch began the process of "closing" my file adding me to PDRL. I have another 8-10 weeks before I hear back from the PEBLO.

QUESTION(s): Based on the fact my condition has worsend, and been found to be static without the need for an RFE, will the DoD adopt the current/static VA rating? Is it purely up to the rater to decide? Is this grounds to consider legal action if they don't increase the rating on the DoD side?

Thanks for the support!
 
carlct027 said:
I have an update and a question if anyone is out there still. NOTE: I am only referring to "PEB reffered" rating(s) in this message.

Update: I'm still TDRL; in OCT 2024 I received a higher level review from the VA, in which my "PEB reffered" condition was found to be "static" at 70%. This is an increase from the 50% I left the Army with. After sending in my VA code sheet, the TDRL branch began the process of "closing" my file adding me to PDRL. I have another 8-10 weeks before I hear back from the PEBLO.

QUESTION(s): Based on the fact my condition has worsend, and been found to be static without the need for an RFE, will the DoD adopt the current/static VA rating? Is it purely up to the rater to decide? Is this grounds to consider legal action if they don't increase the rating on the DoD side?

Thanks for the support!
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So the PEB uses the VA records but its a one way communication meaning the VA isn't going to do anything. So for you to have it increased you would need to wait for a RFE from the VA or submit a request to increase it with the VA. I would request an increase and upload the documentation from the PEB stating 70% and static. Hopefully the VA would agree but even if they kept you at 50% its a win if the VA changes the condition to static. My wife didn't get P&T until her mental health was static with the VA. That opens up some amazing benefit such as tuition assistance for dependents.
 
Thank you Provis.
It's actually the other way around. The VA is saying static at 70%, I'm waiting on the PEB to make a determination. Do you think they'll use the VAs numbers now that the VA considers it static at the higher rate?
 
carlct027 said:
Thank you Provis.
It's actually the other way around. The VA is saying static at 70%, I'm waiting on the PEB to make a determination. Do you think they'll use the VAs numbers now that the VA considers it static at the higher rate?
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So when they look at the VA data they are only looking at the symptoms. Not the VA's ratings. It's possible. So when going from TDRL to PDRL the system used is the old LDES system and so your branch of military isn't bound by the VA's rating for the condition. Not saying it can't happen. Just saying that they can do whatever the flip they want as you don't have the same protections as IDES.
 
Provis, that's the missing piece I've been looking for (for two years); I haven't been able to get a "straight" answer and it makes sense as to why. My rational mind thinks, symptomology must be at (or above) 70% criteria and the folks on the DoD side can read right into it. Then my 14 years experience with Army systems reminds me it's gonna be a toss up. Given the nature of the evidence (primarily the VA findings) do you think I have grounds to dispute it legally if DoD doesn't concur?

Either way we'll find out in 8-10 weeks, I'll post an update whichever way it goes.
 
carlct027 said:
Provis, that's the missing piece I've been looking for (for two years); I haven't been able to get a "straight" answer and it makes sense as to why. My rational mind thinks, symptomology must be at (or above) 70% criteria and the folks on the DoD side can read right into it. Then my 14 years experience with Army systems reminds me it's gonna be a toss up. Given the nature of the evidence (primarily the VA findings) do you think I have grounds to dispute it legally if DoD doesn't concur?

Either way we'll find out in 8-10 weeks, I'll post an update whichever way it goes.
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You can appeal it. Not sure what branch you are in but for the Army its the Office of Soldiers Counsel (OSC). You definitely don't get as many protections with this part of the process. See link for TDRL fact sheet for Army: Office of Soldiers' Counsel

You can hire a private IDES attorney too. I would go this route if appealing a TDRL decision. I will send you some options in case you need to go this oute.

TDRL sucks! Makes is s lot more stressful since everything can change to include being found fit.
 
Provis you might not believe this; it all happened just now, this morning. I got the call from Fort Knox, they are adding me to PDRL at 70%. Praise God! I would like to summarize my experience and share it with others. There is no road map to increasing your DoD rating if you were underrated on your way out, or if your condition gets worse after that point. We know, it's no small feat to advocate your way through the system and recieve a positive/fair outcome. Do you think I should drop it on this thread, or is there a more impactful location on the site?

Having this website, the moderators/your support, and hearing everyone else's stories is a big part of what got me through.
 
Provis said:
You can appeal it. Not sure what branch you are in but for the Army its the Office of Soldiers Counsel (OSC). You definitely don't get as many protections with this part of the process. See link for TDRL fact sheet for Army: Office of Soldiers' Counsel

You can hire a private IDES attorney too. I would go this route if appealing a TDRL decision. I will send you some options in case you need to go this oute.

TDRL sucks! Makes is s lot more stressful since everything can change to include being found fit.
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I am writing my doctoral dissertation on the awful TDRL system and the perverse incentives specifically for combat PTSD retirees.
 
JMATTK said:
I am writing my doctoral dissertation on the awful TDRL system and the perverse incentives specifically for combat PTSD retirees.
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Very interested in your thesis, re: "perverse incentives specifically for combat PTSD retirees." Do you mean an assumed disincentive to obtain meaningful employment for 6x mos.?
 
TYFYS said:
Very interested in your thesis, re: "perverse incentives specifically for combat PTSD retirees." Do you mean an assumed disincentive to obtain meaningful employment for 6x mos.?
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It’s a pretty simple premise that can be summed up with one question: Why on earth would anyone focus on getting better on TDRL in 18 months when it could mean losing upwards of 50 years of benefits?
 
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