The key issues in this week’s Outrage are:
1. The PDBR gave a 10% rating for PTSD despite the VA rating for the condition never being below 30% and is currently at 70%. This cost SFC Rindorf his disability retirement.
2. The PDBR is unilaterally making TDRL review decisions and ratings, denying the service member the right to a full and fair hearing as required by 10 USC 1214.
3. DoD continues to exploit a flaw in disability law that allows the separation of a disabled service member from the temporary disability retirement list despite the conditions not being stable for rating purposes.
Three years ago over the President’s Day weekend, The Washington Post and the Army Times released explosive articles about wounded warrior care. A central theme in the initial and subsequent press coverage dealt with DoD and Service practices and policies that denied or curtailed disability benefits to wounded warriors. Many hearings and commissions were held that resulted in Congress passing measures to reform the Defense Disability Evaluation System (DES). While there has been some progress in the past three years to improve the DES, DoD and the Services still have in place numerous techniques and tactics to deny or limit DoD disability benefits to wounded warriors.
I have often stated that DoD and the Services bend over backwards to do the least possible for wounded warriors in terms of disability compensation. I also have stated that there are only two things DoD and the Services will do when it come to the DES: What they want to do and what Congress makes them do. I understand these statements can be construed as inflammatory and pejorative but I stand by them in full. They are based on my extensive experience helping wounded warriors as they process through the DES.
To ensure that the key players involved in DES reform have visibility to continuing DES concerns, I am starting a weekly email that will expose and discuss these concerns. For my inaugural DES Outrage of the Week, I will be discussing issues of the Physical Disability Board of Review (PDBR). The PDBR’s past and current actions will back up my statements above. It will focus on the PDBR experience of Army SFC Michael Rindorf, a OIF veteran with multiple service connected medical conditions, most notably, severe PTSD. In short, the Army screwed him out of disability benefits and the PDBR bent over backwards to followed suit.
In 2006, SFC Rindorf went through a Medical Evaluation Board (MEB) and a Physical Evaluation Board (PEB). His MEB deemed that he had several service connected medical conditions. However, his MEB declared that only three of these conditions failed to meet retention standards; a heart condition requiring a pacemaker, PTSD and a mood disorder. The PEB declared that only the heart condition was unfitting resulting in a DoD disability rating of 10%. The PEB stated his PTSD was not separately unfitting despite the MEB psychiatric position that the PTSD created “significant military impairment”. Based on a 10% DoD disability rating, SFC Rindorf was denied disability retirement and separated with a one-time severance payment. He then applied for benefits from the VA which resulted in a VA rating of 30% for his PTSD effective the date of his discharge from the Army. His PTSD rating from the VA is currently 70%. His severance pay from the Army was offset by his VA disability compensation eliminating the career compensation for his 15 years of military service.
After the initial wounded warrior press coverage, Congress quickly recognized the shenanigans that DoD and the Services were using to deny disability benefits. As a result, the 2008 National Defense Authorization Act (NDAA) included a multitude of DES reform measures. One of these measures included language that reinforced the long standing law requiring PEBs to rate unfitting conditions in strict compliance with the Veterans Administration’s Schedule for Rating Disabilities (VASRD). Another reform measure was the creation of the PDBR, a DOD level board to review DES cases that resulted in DoD disability ratings of less than 30%, the level required to qualify for disability retirement. Congress limited the eligibility window for the PDBR to those separated between 9-11-2001 and 12-31-2009. These two reform measure, and DoD disingenuous application of these measures, directly impacted SFC Rindorf’s situation.
Congress gave DoD authority to establish the operating polices for the PDBR. DoD seized on this opportunity and implemented PDBR policies that would severely limit the PDBR’s ability to grant relief as well as to reduce the amount of the relief granted. DoD established a policy that stated if the PDBR decided to recommend disability retirement, the retirement would not be retroactive to the date of discharge. Rather, the retirement effective date would be the date of the PDBR recommendation. Exposure of this policy to the press and veterans service community resulted in a quick change in the policy that made PDBR retirement recommendations effective the date of discharge.
Other initial PDBR policies also demonstrated DoD’s propensity for enacting and continuing DES policies that do the least possible for wounded warriors. First, DoD stated that the PDBR could only review conditions that the PEB deemed unfitting. Second, DoD stated that if a service member was separated before the enactment of the 2008 NDAA (28 January 2008), the PDBR could still rate the conditions per non VASRD criteria. Fortunately, DoD changed these policies after press exposure and Congressional pressure. The DoD policy change dictated that the PDBR would review all conditions and rate conditions they deemed unfitting in strict compliance with the VASRD. Without these policy changes, the PDBR would have limited SFC Rindorf’s appeal to just his heart condition and, even if the PEB had found his PTSD unfitting, the PDBR would have continued using low-balling, non VASRD PTSD rating criteria. Unfortunately, as you will read further down, his PDBR found a new disingenuous, and potentially illegal, tactic to deny SFC Rindorf’s disability retirement.
To better understand how the PDBR pulled off this stunt requires an understanding of the DoD PTSD rating problem. PTSD is one of many conditions DoD and the Services low-balled by using non VASRD rating criteria and policies. The VASRD has a provision (4.129) that states if PTSD is severe enough to warrant removal from military service, then the initial rating must be at least 50% for the first six months. The provision requires further evaluation after six months to adjust the rating. This provision aligns perfectly with DoD’s Temporary Disability Retirement List (TDRL) process. The TDRL is used specifically for unfitting conditions that are not stable for final rating determinations. Instead, DoD and the Services adopted policies that allowed them to ignore the VASRD minimum 50% PTSD rating policy. This led to thousands of service members receiving artificially low ratings and non retirement separations for PTSD. SFC Rindorf was one of these service members.
The impact of DoD PTSD rating policies became evident in a study conducted by the congressionally chartered Veteran’s Disability Benefits Commission (VDBC). This 2007 study identified 849 cases where service members received ratings for PTSD by DoD PEBs and who were then subsequently rated by the VA for PTSD. The VDBC study identified 849 such PTSD cases rated less than 30% by DoD. Of these 849 PTSD cases, 749 were immediately rated at 30% or more by the VA for PTSD. (The remaining 100 cases rated less than 30% by the VA indicates that many VA raters are not aware of the VASRD’s minimum 50% initial rating requirement for PTSD). Additionally, the study indentified 182 cases rated by DoD of 30% or more. Of these 182 PTSD cases, only seven received lower ratings by the VA. However, an astonishing 141 of these cases received higher ratings by the VA. The VDBC study clearly demonstrated that the fix was in to avoid and lower DoD disability benefits for PTSD.
Even after the enactment of the 2008 NDAA provision that reinforced the requirement for DoD to rate unfitting conditions per the VASRD, the Army adopted yet another policy to ignore the VASRD’s initial minimum 50% rating provision for PTSD. DoD was seriously considering propagating the Army’s new PTSD rating policy DoD wide. Press coverage, Congressional pressure and a DoD legal review forced DoD to reconsider. Finally, in October of 2008, DoD established policy that enforced the use of the VASRD’s 50% minimum rating for PTSD.
In December 2008, the National Veterans Legal Services Program (NVLSP) filed suit to force DoD to fix past PTSD cases that PEBs improperly rated. Recently, DoD reached a agreement and identified over 4,300 such cases going back to December 2002. Those who elect to take part in the settlement will receive a initial 50% DoD PTSD TDRL disability rating for the first six months of separation. DoD will then expedite a review of these cases, presumably by the PDBR, to determine the DoD rating status for the period of time following the initial 50% minimum rating. While this settlement is good news, the tactic the PDBR used to deny SFC Rindorf’s disability retirement for his PTSD does not bode well for the thousands of other victim’s of DoD’s errant PTSD rating policies.
I need to point out that, by law, DoD has the authority to nominate disability cases for review by the PDBR. They could have easily identified past improperly rated PTSD cases, and notified the service members for the option of having the PDBR review their case. Instead, it required a lawsuit to force DoD to identify the service members affected by erroneous PTSD ratings. Even at that, DoD is only going to review the cases of service members that opt into the lawsuit. These members will first have to be located and notified by the NVLSP with a deadline for opting in of July of 2010. This will certainly narrow the number of PTSD cases fixed by DoD. Further, due to statute of limitations, the NVLSP suit only covers PTSD cases back to December 2002. However, the PDBR can review cases going back to 9-11-2001. DoD’s unwillingness to proactively notify all service members affected by erroneous PTSD ratings further illuminates my position that DoD bends over backwards to do the least possible for wounded warriors. DoD prefers to let sleeping dogs lay and leave these wounded warrior’s disability ratings broken. DoD’s lack of action certainly contributes to the increase in the suicide rate and homelessness of service members affected by PTSD.
SFC Rindorf filed with the PDBR to review his case on multiple issues to include his PEB’s determination that his PTSD was not unfitting. The PDBR, following their revised policies, found his PTSD to be unfitting and correctly applied the minimum 50% initial rating as required by the VASRD. Unfortunately, the PDBR’s decision process then went rogue and stated that after this six month’s initial 50% rating period ended, SFC Rindorf’s rating should revert to a 10% rating. The PDBR recommendation puts SFC Rindorf on the TDRL for the first six months after he left service but then separates him again without disability retirement. The PDBR’s recommendation to give SFC Rindorf only six months of retirement via the TDRL and then separate him is flawed on two major fronts.
First, the PDBR lowered SFC Rindorf’s PTSD rating to 10% despite the fact his VA rating for PTSD has never been lower than 30% and is currently at 70%. His 70% VA rating went into effect less than three years after separation. It is clear DoD is continuing to assign disability ratings significantly lower than that of the VA despite the fact the law requires that they both rate per the VASRD.
Second, the PDBR, by unilaterally deciding the outcome of SFC Rindorf’s TDRL review, has denied his right to a full and fair hearing that he is due under law. 10 USC 1214 states, “No member of the armed forces may be retired or separated for physical disability without a full and fair hearing if he demands it.” A full and fair hearing allows the member to present his case in person with the aid of counsel, submit, review and rebut evidence and to call and question witnesses. When a service member is on the TDRL, his case undergoes a new MEB and PEB at least every 18 months for up to five years. The purpose of the review is to determine the current rating for the unfitting conditions and to determine if the condition is stable for rating purposes. If the service member disagrees with the outcome of the TDRL PEB decision, he or she can demand a formal hearing.
The PDBR’s decision to determine the outcome of a TDRL review decision, in lieu of a full MEB and PEB, is preposterous. A PDBR is a record review, not an in person hearing. DoD policy prohibits the PDBR from granting hearings. Further, PDBR law and DoD policy dictate that the outcome of the PDBR process cannot be further reviewed by the Service Board for the Correction of Military Records (BCMR). In effect, the PDBR is making binding and non challengeable TDRL review decisions without the benefit of a refreshed MEB and PEB that specifically focus on the current status and stability of the condition. Again, the PDBR process denies the service member his legal right to a full and fair hearing to challenge a TDRL review decision that leads to separation due to physical disability. What the PDBR should do in cases like SFC Rindorf’s is to grant the initial TDRL rating and return the case to the Service DES element to conduct a full and proper TDRL review to include a MEB,PEB and a formal hearing if demanded by the service member.
It is worth discussing how the PDBR was able to recommend the discharge of SFC Rindorf (without disability retirement) despite the lack of stability his current PTSD rating, which again is currently rated at 70% by the VA. The problem centers on a flaw in disability law that DoD exploited to, once again, do the least possible for the wounded warrior. In essence, disability law only requires placement and retention on the TDRL if the condition is unstable and rated at 30% or more. If the rating ever drops below 30%, the law state the Service may discharge the individual without disability retirement regardless of how unstable the condition is or its future rating. DoD and the Services, by policy and action, have changed the “may” portion of this law to “will”. To take away wounded warrior’s disability retirement, DoD merely has to claim the rating dropped below 30%, regardless of the conflicting evidence such as a VA rating for the condition.
In December 2005, I brought the TDRL ratings stability issue to the attention of Mr. Michael Higgins, a professional staff member of the House Armed Services Committee. Throughout 2006, Mr. Higgins shepherded legislation through the House of Representative’s version of the 2007 NDAA that required rating stability before removal from the TDRL. Unfortunately, the Senate version of the 2007 NDAA did not contain a similar provision and the measure was dropped in conference. The 2007 NDAA did require DoD to conduct a report on the TDRL issue but I am not sure if the report was ever done or released to the public. I am sure that DoD never took action, such as a legislative proposal, to remedy the problem.
It appears the measure to fix the TDRL stability issue lost steam after the revelations of wounded warrior care in the media in 2007. There were many recommendations made by committees investigating these concerns that, if adopted, would have made the TDRL stability issue moot. For instance, the Dole Shalala commission recommended all service members who are found unfit due to a service connected condition be retired regardless of the disability rating; much in the same way that civil servants are treated when they are forced out due to disability. This Dole/Shalala recommendation, if adopted, would have eliminated this and many of the other tactics DoD uses to deny disability retirement. Unfortunately, this and many other necessary reform measures have yet to get serious traction in Congress.
In conclusion, the PDBR tactic used on SFC Rindorf is but one of many continuing DES practices that bend over backwards to do the least possible for our wounded warriors. DoD has proven over and over again that only specific Congressional action will fix the remaining issues. In next week’s DES outrage of the Week, I will focus on how the Army DES is avoiding compensating migraine headaches; a condition that is quite common among the tens of thousands of service members affected by PTSD and traumatic brain injuries.
Michael A. Parker
LTC, USA (Retired)
Wounded Warrior Advocate
1. The PDBR gave a 10% rating for PTSD despite the VA rating for the condition never being below 30% and is currently at 70%. This cost SFC Rindorf his disability retirement.
2. The PDBR is unilaterally making TDRL review decisions and ratings, denying the service member the right to a full and fair hearing as required by 10 USC 1214.
3. DoD continues to exploit a flaw in disability law that allows the separation of a disabled service member from the temporary disability retirement list despite the conditions not being stable for rating purposes.
Three years ago over the President’s Day weekend, The Washington Post and the Army Times released explosive articles about wounded warrior care. A central theme in the initial and subsequent press coverage dealt with DoD and Service practices and policies that denied or curtailed disability benefits to wounded warriors. Many hearings and commissions were held that resulted in Congress passing measures to reform the Defense Disability Evaluation System (DES). While there has been some progress in the past three years to improve the DES, DoD and the Services still have in place numerous techniques and tactics to deny or limit DoD disability benefits to wounded warriors.
I have often stated that DoD and the Services bend over backwards to do the least possible for wounded warriors in terms of disability compensation. I also have stated that there are only two things DoD and the Services will do when it come to the DES: What they want to do and what Congress makes them do. I understand these statements can be construed as inflammatory and pejorative but I stand by them in full. They are based on my extensive experience helping wounded warriors as they process through the DES.
To ensure that the key players involved in DES reform have visibility to continuing DES concerns, I am starting a weekly email that will expose and discuss these concerns. For my inaugural DES Outrage of the Week, I will be discussing issues of the Physical Disability Board of Review (PDBR). The PDBR’s past and current actions will back up my statements above. It will focus on the PDBR experience of Army SFC Michael Rindorf, a OIF veteran with multiple service connected medical conditions, most notably, severe PTSD. In short, the Army screwed him out of disability benefits and the PDBR bent over backwards to followed suit.
In 2006, SFC Rindorf went through a Medical Evaluation Board (MEB) and a Physical Evaluation Board (PEB). His MEB deemed that he had several service connected medical conditions. However, his MEB declared that only three of these conditions failed to meet retention standards; a heart condition requiring a pacemaker, PTSD and a mood disorder. The PEB declared that only the heart condition was unfitting resulting in a DoD disability rating of 10%. The PEB stated his PTSD was not separately unfitting despite the MEB psychiatric position that the PTSD created “significant military impairment”. Based on a 10% DoD disability rating, SFC Rindorf was denied disability retirement and separated with a one-time severance payment. He then applied for benefits from the VA which resulted in a VA rating of 30% for his PTSD effective the date of his discharge from the Army. His PTSD rating from the VA is currently 70%. His severance pay from the Army was offset by his VA disability compensation eliminating the career compensation for his 15 years of military service.
After the initial wounded warrior press coverage, Congress quickly recognized the shenanigans that DoD and the Services were using to deny disability benefits. As a result, the 2008 National Defense Authorization Act (NDAA) included a multitude of DES reform measures. One of these measures included language that reinforced the long standing law requiring PEBs to rate unfitting conditions in strict compliance with the Veterans Administration’s Schedule for Rating Disabilities (VASRD). Another reform measure was the creation of the PDBR, a DOD level board to review DES cases that resulted in DoD disability ratings of less than 30%, the level required to qualify for disability retirement. Congress limited the eligibility window for the PDBR to those separated between 9-11-2001 and 12-31-2009. These two reform measure, and DoD disingenuous application of these measures, directly impacted SFC Rindorf’s situation.
Congress gave DoD authority to establish the operating polices for the PDBR. DoD seized on this opportunity and implemented PDBR policies that would severely limit the PDBR’s ability to grant relief as well as to reduce the amount of the relief granted. DoD established a policy that stated if the PDBR decided to recommend disability retirement, the retirement would not be retroactive to the date of discharge. Rather, the retirement effective date would be the date of the PDBR recommendation. Exposure of this policy to the press and veterans service community resulted in a quick change in the policy that made PDBR retirement recommendations effective the date of discharge.
Other initial PDBR policies also demonstrated DoD’s propensity for enacting and continuing DES policies that do the least possible for wounded warriors. First, DoD stated that the PDBR could only review conditions that the PEB deemed unfitting. Second, DoD stated that if a service member was separated before the enactment of the 2008 NDAA (28 January 2008), the PDBR could still rate the conditions per non VASRD criteria. Fortunately, DoD changed these policies after press exposure and Congressional pressure. The DoD policy change dictated that the PDBR would review all conditions and rate conditions they deemed unfitting in strict compliance with the VASRD. Without these policy changes, the PDBR would have limited SFC Rindorf’s appeal to just his heart condition and, even if the PEB had found his PTSD unfitting, the PDBR would have continued using low-balling, non VASRD PTSD rating criteria. Unfortunately, as you will read further down, his PDBR found a new disingenuous, and potentially illegal, tactic to deny SFC Rindorf’s disability retirement.
To better understand how the PDBR pulled off this stunt requires an understanding of the DoD PTSD rating problem. PTSD is one of many conditions DoD and the Services low-balled by using non VASRD rating criteria and policies. The VASRD has a provision (4.129) that states if PTSD is severe enough to warrant removal from military service, then the initial rating must be at least 50% for the first six months. The provision requires further evaluation after six months to adjust the rating. This provision aligns perfectly with DoD’s Temporary Disability Retirement List (TDRL) process. The TDRL is used specifically for unfitting conditions that are not stable for final rating determinations. Instead, DoD and the Services adopted policies that allowed them to ignore the VASRD minimum 50% PTSD rating policy. This led to thousands of service members receiving artificially low ratings and non retirement separations for PTSD. SFC Rindorf was one of these service members.
The impact of DoD PTSD rating policies became evident in a study conducted by the congressionally chartered Veteran’s Disability Benefits Commission (VDBC). This 2007 study identified 849 cases where service members received ratings for PTSD by DoD PEBs and who were then subsequently rated by the VA for PTSD. The VDBC study identified 849 such PTSD cases rated less than 30% by DoD. Of these 849 PTSD cases, 749 were immediately rated at 30% or more by the VA for PTSD. (The remaining 100 cases rated less than 30% by the VA indicates that many VA raters are not aware of the VASRD’s minimum 50% initial rating requirement for PTSD). Additionally, the study indentified 182 cases rated by DoD of 30% or more. Of these 182 PTSD cases, only seven received lower ratings by the VA. However, an astonishing 141 of these cases received higher ratings by the VA. The VDBC study clearly demonstrated that the fix was in to avoid and lower DoD disability benefits for PTSD.
Even after the enactment of the 2008 NDAA provision that reinforced the requirement for DoD to rate unfitting conditions per the VASRD, the Army adopted yet another policy to ignore the VASRD’s initial minimum 50% rating provision for PTSD. DoD was seriously considering propagating the Army’s new PTSD rating policy DoD wide. Press coverage, Congressional pressure and a DoD legal review forced DoD to reconsider. Finally, in October of 2008, DoD established policy that enforced the use of the VASRD’s 50% minimum rating for PTSD.
In December 2008, the National Veterans Legal Services Program (NVLSP) filed suit to force DoD to fix past PTSD cases that PEBs improperly rated. Recently, DoD reached a agreement and identified over 4,300 such cases going back to December 2002. Those who elect to take part in the settlement will receive a initial 50% DoD PTSD TDRL disability rating for the first six months of separation. DoD will then expedite a review of these cases, presumably by the PDBR, to determine the DoD rating status for the period of time following the initial 50% minimum rating. While this settlement is good news, the tactic the PDBR used to deny SFC Rindorf’s disability retirement for his PTSD does not bode well for the thousands of other victim’s of DoD’s errant PTSD rating policies.
I need to point out that, by law, DoD has the authority to nominate disability cases for review by the PDBR. They could have easily identified past improperly rated PTSD cases, and notified the service members for the option of having the PDBR review their case. Instead, it required a lawsuit to force DoD to identify the service members affected by erroneous PTSD ratings. Even at that, DoD is only going to review the cases of service members that opt into the lawsuit. These members will first have to be located and notified by the NVLSP with a deadline for opting in of July of 2010. This will certainly narrow the number of PTSD cases fixed by DoD. Further, due to statute of limitations, the NVLSP suit only covers PTSD cases back to December 2002. However, the PDBR can review cases going back to 9-11-2001. DoD’s unwillingness to proactively notify all service members affected by erroneous PTSD ratings further illuminates my position that DoD bends over backwards to do the least possible for wounded warriors. DoD prefers to let sleeping dogs lay and leave these wounded warrior’s disability ratings broken. DoD’s lack of action certainly contributes to the increase in the suicide rate and homelessness of service members affected by PTSD.
SFC Rindorf filed with the PDBR to review his case on multiple issues to include his PEB’s determination that his PTSD was not unfitting. The PDBR, following their revised policies, found his PTSD to be unfitting and correctly applied the minimum 50% initial rating as required by the VASRD. Unfortunately, the PDBR’s decision process then went rogue and stated that after this six month’s initial 50% rating period ended, SFC Rindorf’s rating should revert to a 10% rating. The PDBR recommendation puts SFC Rindorf on the TDRL for the first six months after he left service but then separates him again without disability retirement. The PDBR’s recommendation to give SFC Rindorf only six months of retirement via the TDRL and then separate him is flawed on two major fronts.
First, the PDBR lowered SFC Rindorf’s PTSD rating to 10% despite the fact his VA rating for PTSD has never been lower than 30% and is currently at 70%. His 70% VA rating went into effect less than three years after separation. It is clear DoD is continuing to assign disability ratings significantly lower than that of the VA despite the fact the law requires that they both rate per the VASRD.
Second, the PDBR, by unilaterally deciding the outcome of SFC Rindorf’s TDRL review, has denied his right to a full and fair hearing that he is due under law. 10 USC 1214 states, “No member of the armed forces may be retired or separated for physical disability without a full and fair hearing if he demands it.” A full and fair hearing allows the member to present his case in person with the aid of counsel, submit, review and rebut evidence and to call and question witnesses. When a service member is on the TDRL, his case undergoes a new MEB and PEB at least every 18 months for up to five years. The purpose of the review is to determine the current rating for the unfitting conditions and to determine if the condition is stable for rating purposes. If the service member disagrees with the outcome of the TDRL PEB decision, he or she can demand a formal hearing.
The PDBR’s decision to determine the outcome of a TDRL review decision, in lieu of a full MEB and PEB, is preposterous. A PDBR is a record review, not an in person hearing. DoD policy prohibits the PDBR from granting hearings. Further, PDBR law and DoD policy dictate that the outcome of the PDBR process cannot be further reviewed by the Service Board for the Correction of Military Records (BCMR). In effect, the PDBR is making binding and non challengeable TDRL review decisions without the benefit of a refreshed MEB and PEB that specifically focus on the current status and stability of the condition. Again, the PDBR process denies the service member his legal right to a full and fair hearing to challenge a TDRL review decision that leads to separation due to physical disability. What the PDBR should do in cases like SFC Rindorf’s is to grant the initial TDRL rating and return the case to the Service DES element to conduct a full and proper TDRL review to include a MEB,PEB and a formal hearing if demanded by the service member.
It is worth discussing how the PDBR was able to recommend the discharge of SFC Rindorf (without disability retirement) despite the lack of stability his current PTSD rating, which again is currently rated at 70% by the VA. The problem centers on a flaw in disability law that DoD exploited to, once again, do the least possible for the wounded warrior. In essence, disability law only requires placement and retention on the TDRL if the condition is unstable and rated at 30% or more. If the rating ever drops below 30%, the law state the Service may discharge the individual without disability retirement regardless of how unstable the condition is or its future rating. DoD and the Services, by policy and action, have changed the “may” portion of this law to “will”. To take away wounded warrior’s disability retirement, DoD merely has to claim the rating dropped below 30%, regardless of the conflicting evidence such as a VA rating for the condition.
In December 2005, I brought the TDRL ratings stability issue to the attention of Mr. Michael Higgins, a professional staff member of the House Armed Services Committee. Throughout 2006, Mr. Higgins shepherded legislation through the House of Representative’s version of the 2007 NDAA that required rating stability before removal from the TDRL. Unfortunately, the Senate version of the 2007 NDAA did not contain a similar provision and the measure was dropped in conference. The 2007 NDAA did require DoD to conduct a report on the TDRL issue but I am not sure if the report was ever done or released to the public. I am sure that DoD never took action, such as a legislative proposal, to remedy the problem.
It appears the measure to fix the TDRL stability issue lost steam after the revelations of wounded warrior care in the media in 2007. There were many recommendations made by committees investigating these concerns that, if adopted, would have made the TDRL stability issue moot. For instance, the Dole Shalala commission recommended all service members who are found unfit due to a service connected condition be retired regardless of the disability rating; much in the same way that civil servants are treated when they are forced out due to disability. This Dole/Shalala recommendation, if adopted, would have eliminated this and many of the other tactics DoD uses to deny disability retirement. Unfortunately, this and many other necessary reform measures have yet to get serious traction in Congress.
In conclusion, the PDBR tactic used on SFC Rindorf is but one of many continuing DES practices that bend over backwards to do the least possible for our wounded warriors. DoD has proven over and over again that only specific Congressional action will fix the remaining issues. In next week’s DES outrage of the Week, I will focus on how the Army DES is avoiding compensating migraine headaches; a condition that is quite common among the tens of thousands of service members affected by PTSD and traumatic brain injuries.
Michael A. Parker
LTC, USA (Retired)
Wounded Warrior Advocate
