TDRL 100% to PDRL 70% help

Ramblin Rambler

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Hello all,
Medically retired Navy with about 18 years of service. Unfit condition is Schizophrenia. I was separated Sep 2017 at 70%. Increased to 100% at my 6 month re eval. Just got a letter that says they want to close out my case and offering 70% PDRL. My options are either accept this or appeal and request a formal board. Sounds like I need to discuss with a lawyer but thought I would ask around in here for advice. I would obviously prefer to keep 100% or at least 70% with IU which would be better pay. Haven't worked following my separation. Well for a little I helped a buddy but it was tough. I have worked hard to improve my mental health. A lot of the progress has been made because I have been able to use the VA disability and SSDI to live off of and not be stressed about working.

My letter says Schizophrenia is stable and they want to use my discharge rate as permanent IAW Peb president and COVID issues. Any recommendations?
 

Provis

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The max payout for the DOD side is 75% so 70% is amazing for PDRL. Remember your VA rating can change later on but your DOD rating is forever once you are PDRL. If it were me I would seriously consider accepting. If you do appeal or go to a Formal Board all the options are on the table to included decreasing it. I don't know if I would take that much risk considering the possible upside is only 5% more.
 

Ramblin Rambler

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Provis, Thanks for the reply. The lawyer that I was supposed to discuss this with is reviewing my record and going to get back to me.

I guess I don't understand the difference between DOD and VA percentages. I was 100% with the VA but not even sure about the DOD%. I assumed it was 100%. So I can actually accept the DOD findings and the VA could remain at 100%
 

Provis

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70% PDRL is definitely DOD rating since they are proposing to take you off TDRL and on to PDRL. The VA has its own separate rating and if its 100% then yes it still could be 100%. The VA rates ALL of your conditions while the DOD rating is only for the conditions that they find you unfit for duty. Lastly the DOD rating is permanent and wont change:) The VA rating can change based on how your are doing. If you get better then they can lower it and if you get worse they can raise it. So I wouldn't worry about the VA rating too much at this point. Getting your DOD% rating moved to PDRL is way more important. That won't ever change once you move from TDRL to PDRL. Since the DOD rating they are proposing for PDRL is 70% and the max pay they can do is 75% I would strongly consider accepting those findings. So if they offered 100% PDRL it wouldn't change your pay much because your pay will for retirement would still only be 75%.
 

chaplaincharlie

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I recommend you consult with your attorney, after the attorney has reviewed your file. There are many variable that go into making a good financial discussion. As you said, you have worked at getting better. Getting better often means your level of benefits drop.
 

041n481

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I have a very similar case. While going through the IDES process, they rated me 100% DOD and VA rated 100% P&T, all combat related. I was discharged from the military and placed on TDRL. The conditions that found me unfit for service were rated 100% and that never changed. When it was time for consideration to the PDRL, I was asked to submit medical records for review. They only wanted the last 6 months of my records. Due to the covid virus, most of my appointments were over the telephone with the VA the past 6 months. I've been on TDRL for nearly 2 years and I have extensive medical records all dealing with my unfitting conditions. So, I feel they are lowballing me and also not getting a full picture of my conditions. Also, if the VA has me rated 100 for the unfitting conditions and I am P&T, does the DOD have to follow that rating or do they come up with their own rating simply based on only 6 months of documents? In part, the TDRL to PDRL paperwork states "IAW Veteran's Administration Schedule for Rating Disabilities".
The military office of counsel has mostly been useless at this point. The attorney could not answer whether or not the DOD had to follow what the VA rated me at (100) since im P&T. Since I am 100 for the unfitting conditions and P&T by the VA, it seems asinine the DOD would have a different rating. I am just unaware of the rules, regs, and laws and my attorney simply told me, "I don't have the case law in front of me right now to answer that." Wow! Apparently, I got the guy that just got off the law school bus.
I sent all my medical records to the attorney. Because it is extensive, he wants me to scale it down so the formal board doesn't have to look at nearly 800 pages of documents. Well, most of those pages relate to my unfitting condition and I really thought the attorney would want to review those records and decide based on his "law experience" what records to present. I'm left wondering what help the counsel is providing.
5% may not seem much and monetarily, it wouldn't make much difference. As my attorney stated, "It may be get you a cheeseburger and fries every month." Well, fu-k him. My decision is to fight for my cheeseburger and fries and enjoy every bite while I think about the wonderful advice this attorney offered me. I realize he is not emotionally involved and is there to advocate for me and recommend the best way forward. Hell, if I had to listen to everyone that told me to settle or to "forget about it", I'd be left with nearly nothing. I fought for my country, did what was asked of me, followed all the rules. I came back a changed person and the military decided to discharge me. I have never stopped getting treatment and I don't see that changing anytime soon. Personally, I don't want to look back and say that I settled, even if it's 5%. I'm not bagging on anyone that has settled; its just not what im going to do. Everyone has their reasons. Furthermore, you never know how laws may change in the future. While it may seem farfetched right now, who knows if that 75% is increased to 80, 90, etc?? Then, I'm looking at eating steak and potatoes every month instead of that damn cheeseburger and fries!
In addition to the above question, does the board only review the last 6 months of records or do they review everything?
 

RonG

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Hello @041n481

Re: "The military office of counsel has mostly been useless at this point. The attorney could not answer whether or not the DOD had to follow what the VA rated me at (100) since im P&T. Since I am 100 for the unfitting conditions and P&T by the VA, it seems asinine the DOD would have a different rating."

Many disability retirees have different DoD and VA ratings.

The VA ratings = All service-connected disabilities.

The DoD ratings = Only those service-connected disabilities for which the retiree was referred to a medical board and were determined to make the member unfit for further service.
The PEB uses the VA’s ratings for the conditions that qualify for DoD Disability (this doesn't necessarily include all service-connected disabilities).

Ron
 
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tony292

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For it to be worth anything with the Va offset your high 3 would have to be higher than your VA 100% payment.

for example, I retired at O4 (promotes let day of service) but my high 3 was based on one year of O3E over 18 and 2 years O3E over 16. That came out to 4700 before SBP. So 4700-3400 is 1300 DOD pension. I was rated 100% DOD and 100% PT VA.

if your dod pay is less than VA, then there is no benefit to appealing it as the offset will erase all of the DOD retirement pay.

the more info you provide the more we can help.
 

041n481

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I appreciate the responses! Yes, I understand a lot of retirees have different DOD and VA ratings. What I'm trying to communicate is in my personal case, my unfitting conditions were rated 100 by both the VA and DOD when I was discharged from the military. I was placed on the TDRL and the VA rated my unfitting conditions at 100 and also rated me P&T. None of that has changed. Thus, the VA is essentially stating my condition is not expected to get "better". So, I'm just questioning if the DOD, by matter of law, rule, or regulation has to follow that 100% rating the VA gave me specifically to those unfitting conditions when the VA also considered me P&T. I guess where I'm getting lost in translation is if a particular unfitting disability is considered 100 by the VA; and the VA and DOD had the exact rating for said disability at beginning of TDRL; the veteran is considered P&T, how does the DOD go against what the VA has stated (unfitting condition is 100 percent disabling and the veteran is also P&T)? Can the DOD just simply disagree with the VAs decision? It simply may be there are rules, regs, laws, that say the DOD can, in fact, do that. I just don't know. My PDRL proposal does in part state, "IAW Veteran's Administration Schedule for Rating Disabilities". Im not sure and that is why I'm asking. I'm probably not doing a good job at trying to communicate effectively.
I understand the offset, CRSC, CRDP, etc. Again, what if the laws change sometime in the future?(and you can "what if" all day long) Take the "Major Richard Star Act" that is making its rounds (slowly). If that were actually to become law, then that could benefit those with less than 20 yrs service with unfitting combat related disabilities (not sure if retirement pay would be greater than CRSC or not. I understand it would be one or the other). Or, simply any other similar bill would become law. The way I see it is if you settle for some lower rating now with the DOD, you could be setting yourself up for lost benefits/income in the future. All of that is in addition to the simple fact I may have what others would consider foolish pride. Eh, maybe a little, but only I know what I've experienced, how it affects my daily living, etc. Not asking for a pity party! With that, I find it hard to accept a lower rating from someone I envision sitting at a desk reviewing maybe only 6 months of VA records, and states they are following the VASRD. If they were and they actually read through my documents, seems to me a 100 rating from the DoD would be appropriately rated and justified.
I appreciate everyone's advice and comments. I am not a great communicator and that may come to bite me in the backside when it comes to a formal board, but I am not going to give up. This really doesn't stand to help me financially in any way right now and that is not what is driving me. As they say, "Its just the point...." I don't know how many times I've been told by an older veteran, "When you raise your right hand and recite the oath, you are saying you will lay down your life for your country. Uncle Sam is telling you that he will take care of the veteran and his family." Well, I don't feel my combat experiences, what it has done to my health, effectively altered every loved one in my life to some degree, is fulfilling Uncle Sam's promise by taking care of us at "70%".
The military counsel told me I might get a cheeseburger and fries with the extra five percent I may get as it stands right now. Well, if it's not that big of a deal for the government and I don't stand to benefit anything from the DOD by a possible increase of 5% with the way the laws are currently written, why the hell should it be me rolling over to submit to a belly rub? I stood and fought for our govt. I'd like for them to stand and fight for my family and me.
 

RonG

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Hello,

You express yourself quite well.

Ref: "What I'm trying to communicate is in my personal case, my unfitting conditions were rated 100 by both the VA and DOD when I was discharged from the military. I was placed on the TDRL and the VA rated my unfitting conditions at 100 and also rated me P&T. None of that has changed. Thus, the VA is essentially stating my condition is not expected to get "better". So, I'm just questioning if the DOD, by matter of law, rule, or regulation has to follow that 100% rating the VA gave me specifically to those unfitting conditions when the VA also considered me P&T. I guess where I'm getting lost in translation is if a particular unfitting disability is considered 100 by the VA; and the VA and DOD had the exact rating for said disability at beginning of TDRL; the veteran is considered P&T,"

The following does not change anything; just some thoughts, posted.

--The VA apparently rated your disabilities P&T. That is not a term used in conjunction with a DoD rating in my opinion.
--As you know, TDRL is temporary. PDRL (DoD Permanent Disability Retired List) is permanent and one can expect it to remain intact. Conversely, a VA rating that is considered "P&T" can be reduced under certain circumstances. I posted a lengthy discussion about that issue within the past 30 days on this board. References were included.
--It is possible for a 100% VA rating to remain at 100% even if some of the disabilities were removed from the rating computation (combined rating). The amount of basic benefit paid ranges, depending on how disabled you are. VA makes a determination about the severity of your disability based on the evidence you submit as part of your claim, or that VA obtains from your military records. VA rates disability from 0% to 100% in 10% increments (e.g. 10%, 20%, 30% etc.). See the Combined Ratings section below for information about how VA calculates disability percentage for multiple disabilities.

Good luck to you. I suspect that some of the old-timers on this board will address your comments and questions. I did not go through a MEB/PEB.

Ron

Edited to add:
Reference: M21-1, Part III, Subpart iv, Chapter 8, Section C - Protected Ratings
https://www.knowva.ebenefits.va.gov...-iv,-Chapter-8,-Section-C---Protected-Ratings <---LINK

As some have implied, any rating including 100% can be reduced unless it is "protected". A rating such as 100% does not become protected immediately.

"Preservation of disability evaluations (the protection of certain long-standing evaluations from reduction) derives from 38 U.S.C. 110 and is implemented in 38 CFR 3.951(b).
The regulation provides that a disability compensation evaluation of any level that has been continuously in effect for 20 years or more will not be reduced to a lower evaluation except upon a showing that the higher evaluation was based upon fraud." [see other discussions at link]

100% Permanent and Total: A permanent and total (P&T) rating is not a protected rating. Here, “permanent” means that the condition is assumed to be chronic in nature and not likely to improve. “Total” means that the maximum rating has been assigned.

There are some non-VA sites that make the unfounded claim that the 100% T&P rating cannot be reduced, but none produce a law or regulation to support their assertion. M21-1 is a VA publication and it is the VA's Adjudication Procedures Manual. This issue comes up several times a year at another site where I spend time. Fielding questions similar to this discussion are usually done by current and former raters with the VA.

Ron
 

oddpedestrian

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@041n481

You are making a lot of unnecessary assumptions and I agree with your attorney on this matter as well. The VA gave you P&T out the door whereas the DoD considered the disabling condition unstable so the confusion starts there. The DoD cannot give you PDRL under some conditions mental health being one of them, technically neither should have the VA. The VA usually grants P&T after one to three reviews but the rater has discretion to grant it at the same time as SC if "no material improvement" is likely so its kinda a catch. Since you did not have any VA re-evaluations for the unstabling condition the DoD is not required to grant the same rating as the VA did since that was two years ago. To answer your question more bluntly the answer is solid NO the VA rating decision from two years ago is not binding on the DoD they retain authority to adjudicate differently.

You are also wrong on trying to waste your attorney's time with 800 pages of VA records, VA medical records are unbelievably redundant often just repeating the same things over and over you have an obligation to be proactive here if you really want to pursue appealing this. "Relevant" and "extensive" medical records still doesn't mean much the records need to support the 100% disability rating maybe your records actually support the 70% rating? Thats why its important to read them yourself often VA records are kinda vague not really denying or supporting the severity of a disability.

I highly doubt anyone will believe you got "low-balled" with a 70% rating and dont expect your attorney to put a lot of work into your case because you believe at some unknown time in the future you may get some extra hypothetical benefits that do not exist and may never exist.

I understand you served made a lot of sacrifices for your country everyone here has done the same you do not have to convince us otherwise, I also believe in fighting for just benefits and help Veterans with it every day but this is a 5% issue not a 100 to 70 or a 30% loss issue.

If you still want to pursue this I would ask your attorney if its possible to request an exam thats they only thing I do not like about your case by using the VA medical records I feel maybe the opposite is true that the records do not capture the full severity of your disabling condition but an exam would, COVID is no excuse for them trying to skip it since it led to a reduction anyway, thats what my focus would be on right now.
 

tony292

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PEB Forum Veteran
I appreciate the responses! Yes, I understand a lot of retirees have different DOD and VA ratings. What I'm trying to communicate is in my personal case, my unfitting conditions were rated 100 by both the VA and DOD when I was discharged from the military. I was placed on the TDRL and the VA rated my unfitting conditions at 100 and also rated me P&T. None of that has changed. Thus, the VA is essentially stating my condition is not expected to get "better". So, I'm just questioning if the DOD, by matter of law, rule, or regulation has to follow that 100% rating the VA gave me specifically to those unfitting conditions when the VA also considered me P&T. I guess where I'm getting lost in translation is if a particular unfitting disability is considered 100 by the VA; and the VA and DOD had the exact rating for said disability at beginning of TDRL; the veteran is considered P&T, how does the DOD go against what the VA has stated (unfitting condition is 100 percent disabling and the veteran is also P&T)? Can the DOD just simply disagree with the VAs decision? It simply may be there are rules, regs, laws, that say the DOD can, in fact, do that. I just don't know. My PDRL proposal does in part state, "IAW Veteran's Administration Schedule for Rating Disabilities". Im not sure and that is why I'm asking. I'm probably not doing a good job at trying to communicate effectively.
I understand the offset, CRSC, CRDP, etc. Again, what if the laws change sometime in the future?(and you can "what if" all day long) Take the "Major Richard Star Act" that is making its rounds (slowly). If that were actually to become law, then that could benefit those with less than 20 yrs service with unfitting combat related disabilities (not sure if retirement pay would be greater than CRSC or not. I understand it would be one or the other). Or, simply any other similar bill would become law. The way I see it is if you settle for some lower rating now with the DOD, you could be setting yourself up for lost benefits/income in the future. All of that is in addition to the simple fact I may have what others would consider foolish pride. Eh, maybe a little, but only I know what I've experienced, how it affects my daily living, etc. Not asking for a pity party! With that, I find it hard to accept a lower rating from someone I envision sitting at a desk reviewing maybe only 6 months of VA records, and states they are following the VASRD. If they were and they actually read through my documents, seems to me a 100 rating from the DoD would be appropriately rated and justified.
I appreciate everyone's advice and comments. I am not a great communicator and that may come to bite me in the backside when it comes to a formal board, but I am not going to give up. This really doesn't stand to help me financially in any way right now and that is not what is driving me. As they say, "Its just the point...." I don't know how many times I've been told by an older veteran, "When you raise your right hand and recite the oath, you are saying you will lay down your life for your country. Uncle Sam is telling you that he will take care of the veteran and his family." Well, I don't feel my combat experiences, what it has done to my health, effectively altered every loved one in my life to some degree, is fulfilling Uncle Sam's promise by taking care of us at "70%".
The military counsel told me I might get a cheeseburger and fries with the extra five percent I may get as it stands right now. Well, if it's not that big of a deal for the government and I don't stand to benefit anything from the DOD by a possible increase of 5% with the way the laws are currently written, why the hell should it be me rolling over to submit to a belly rub? I stood and fought for our govt. I'd like for them to stand and fight for my family and me.
You said a whole lot of things while saying nearly nothing of substance that could help us help you.

what is your DOD high 36? There is an enormous difference between an E5 over 18 and an O5 over 18... you not telling us makes it nearly impossible for us to give you good guidance.

bottom line: if your DOD high 36 is less than VA 100% (3400) then you won’t get a cheeseburger and fries every month... there is the thing called VA offset... and it will eat you alive... tell us what your high 36 is and we can help you out..
 
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oddpedestrian

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@tony292

He waives it he is stating if concurrent receipt passes for Chapter 61 retirees in the future he will lose 5% by accepting the reduction.
 

tony292

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@tony292

He waives it he is stating if concurrent receipt passes for Chapter 61 retirees in the future he will lose 5% by accepting the reduction.
He’s not specific at all. 5% means absolutely nothing if the VA 100% is higher than his DOD 75%. Let’s say his DOD 75% is 3000...100% VA is 3400 VA offset cancels out the entire 3000... and if his 70% is 2850... then it is still canceled out by the 3400 100% VA... either way he gets nothing more... the ONLY way he gets his cheeseburger is if he his DOD 70% is higher monetarily than his 100% VA...
 

RonG

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@tony292

He waives it he is stating if concurrent receipt passes for Chapter 61 retirees in the future he will lose 5% by accepting the reduction.
CRDP in the scenario you describe will not exceed the dollar amount of the longevity portion of retired pay. CRDP does not restore waived non-longevity retired pay.

Furthermore, if there is residual retired pay the combination of residual retired pay and CRDP cannot exceed the dollar amount of the longevity portion of the retired pay.

Ron

Edited to add:
@041n481 said: "I understand the offset, CRSC, CRDP, etc. Again, what if the laws change sometime in the future?(and you can "what if" all day long) Take the "Major Richard Star Act" that is making its rounds (slowly). If that were actually to become law, then that could benefit those with less than 20 yrs service with unfitting combat related disabilities (not sure if retirement pay would be greater than CRSC or not. I understand it would be one or the other). "

When you state "if retirement pay would be greater than CRSC or not" I assume you are referring to CRDP which restores waived longevity retired pay for those eligible.

The Concurrent Receipt Laws are complex. Here is a selected list of certain features you might be of interest to you:
1. CRSC can never be more than the waived retired pay.
2. CRSC replaces only longevity retired pay that has been waived for combat related disabilities.
3. CRDP restores the longevity portion of retired pay that has been waived for all service-connected disabilities.
4. If eligible for both CRDP and CRSC, it is usually better to choose CRSC when the approved CRSC covers all the waived longevity retired pay. If it is less, the retiree will lose money making that selection since CRDP covers all service connected disabilities.
5. In cases where there is residual retired pay, the combination of residual retired pay plus the Concurrent Receipt item cannot exceed the longevity portion or retired pay.

There are myriad laws pertaining to the computation of retired pay and Concurrent Receipt. There are hundreds of CRSC computations of CRSC estimates on this board.
These links might be helpful:
Collection of CRSC information: LINK <---
Computation of retired pay
: LINK <---

cc: @tony292
 
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041n481

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I received a call today from the counsel office. Good news is the 70% rating that was proposed was "made in error" because of a clerical error in names. Um, ok??!! My review was completed nonetheless. I was simply sent the wrong rating and now all is good in the world! The bad news is there may be some other person that is going to be very upset if he/she ends up getting a lower rating as a result of the mix-up. I'm not sure that is the case and I sure hope not. I am happy with the outcome and the battle is over for me. I'd like to thank all of those that responded and gave advice and provided guidance. I was really having a crappy day when I was posting and I did an enormous amount of bitchin and whining. Truly, I meant no disrespect to anyone. Every single veteran and their family has made some sacrifice along the way. I am no better, no worse than anyone else. So, I apologize to all of you. This is a great forum with lots of great military people still taking care of one another. I am grateful!
As my health improves and permits me, I will help other active military and veterans in some manner. I WILL pay it forward! God bless!
 

MAJNelsonRET

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I'm going to resurrect this thread from the dead, since I'm in the same position. I retired after 21.5 years 100/100; was literally forced out kicking & cursing. My retirement date 25 Sep 18 and the VA scheduled Examination May 2019, so about 7 months later. 3 months later, my primary condition which was rated 100% alone was reduced to 70% making 90% overall. Now they didn't finally reduce me until July of 2020. I'm appealing the decision with an attorney I hired. This week, I get an email stated I will be moving from TRDL to PDRL with a rating of 70% and I'm deciding if I should appeal that since I'm appealing the VA reduction for the same condition. When I spoke to the examiner for a whooping 15 minutes, I asked her did she even read my medical records, which stack about 9 inches high in paper form, and her answer was she did not have time to. I think if she would have at least read the VA records, she would have seen, my condition had not improved, because people that are improving aren't constantly having their meds increased or changed because they aren't doing the job they're supposed to. Any insight in advice would be greatly appreciated. #SappersLeadTheWay!
 

RonG

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Hello @MarvelousMarvin ,

A few comments about pay.

The DoD rating from 100% to 70% results in your retired pay dropping from 75% x high three average base pay to 70% x high three average base pay.
Seventy-five percent is the maximum payable irrespective of DoD ratings at 80%, 90%, or 100%.

You have already seen your retired pay reduced dollar for dollar in the amount of VA compensation. With 21.5 years active duty (I infer) and a VA rating of 50% or more, you should be receiving CRDP not to exceed the dollar amount of the longevity portion of retired pay which would be 21.5 x 2.5% x high three average base pay.

The combination of residual retired pay from the VA reduction/waiver and CRDP cannot exceed the longevity amount.

Others will likely address the other aspects of your case.

Good luck,
Ron
 
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