Update on Army policy on TDRL placement

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:

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.
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.

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.
 
Jason Perry

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Jason Perry

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#2
A follow-up point about challenging the TDRL finding. The publication date of the above memo was December 9, 2009. I think that for those Soldiers placed on TDRL since that date, there is likely a strong basis for going to court and getting this finding changed to permanent retirement. (Note that this issue is not so clear and is much more complicated when the member is placed on TDRL based on application of 38 CFR 4.129, which is the section normally used for those with PTSD rated at a minimum of 50% for six months).
 

Jason Perry

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#6
Here is a referrence on PTSD, that may be accepted as a PDRL argument for PTSD

http://www.ptsd.va.gov/professional/newsletters/research-quarterly/v20n3.pdf

Let me know what you think Jason.
Not sure if there was a specific part of this that you were referencing, but my quick review did not see anything that would support a TDRL finding (by clear and convincing evidence standard)...Remember, there are two things that must be shown, 1) that the condition will change 2) enough to make a difference for rating purposes. I have a hard time seeing how they can show outcomes for mental health conditions with enough precision to show that it will change a rating.

Also, it seems to me that they can't argue that something will EITHER get better or worse....they will need to show one or the other. Because there are different outcomes for PTSD (some people get worse, some better), I do not see how they can show TDRL by clear and convincing evidence.
 

Jason Perry

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#7
Jason, so what about if you were placed on TDRL for PTSD and something else (such as migraines)?
Not sure if I am getting your question, but I think that any one condition would qualify to place the member on TDRL assuming they show by clear and convincing evidence that the condition will change for rating purposes.
 

Mareille

PEB Forum Regular Member
#8
Hello everyone. I'm new here and trying to help a loved one who is going through the retirement process. My question is: does epilepsy (Seizure disorder) automatically get TDRL? I would have thought that once you have epilepsy, regular seizure occurrences for over a year, the condition will not change? Any thoughts is much appreciated.
 

Jason Perry

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#9
No, I would not say it is "Automatic." Very few things in this process are. What will matter is the likelihood (by a preponderance of the evidence in the Navy/Air Force and by clear and convincing evidence in the Army), based on medical evidence, that the condition will change (that is, get better OR worse) to make a difference to the rating. I would point out that there are many different types of seizures and the course of a disorder in an individual may be very different. So, it would greatly depend on the facts of the case and the medical evaluation.
 

rugbymurf

PEB Forum Regular Member
#11
Jason,

My PEBLO pretty much told me that EVERYONE who is found unfit for PTSD or Depression is placed on the TDRL rather than being permanently retired. Does it make any difference how long you were treated for PTSD before they decided to send you to an MEB? I've been treated for PTSD since 2006. It's been 4.5 years now and it's not getting any better. Probably gradually worse. But it's not like it's a new thing or immediately after returning from deployment. Is that likely to effect whether or not I am put on the TDRL? They said it was "Unstable for rating purposes". I'm guessing that means that I am destined for the TDRL. It's such a mind f**k to finally get through this process and see my potential retirement (separation of some kind) and to know that it's most likely that I will face another 5 years of uncertainty. It sucks! I've done 2 tours and given all I have to give, and I feel that I'm just being strung along indefinitely. As is everyone else who is on TDRL.

Sorry to just b1tch. I know we are, in general, being taken care of much better than the generations before us, and that at least they are actually doing a medical board instead of just separating us. But it's frustrating that we have to keep waiting and waiting to get resolution.

Murph
 

NDBravehart84

PEB Forum Veteran
#12
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:


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.

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.
Jason are there any class action suits pending or planned reguarding TDRL Placement?
 

nwlivewire

PEB Forum Veteran
#15
Boy is this confusing.... :confused:

My concern is that any/all MH issues are almost always given TDRL - especially PTSD, MDD, GAD. No matter how long the SM has been diagnosed and treated for these issues. Then, if the SM has other unfitting physical conditions that are "stable" for rating conditions, those are permanent.

So how come if the SM is placed on TDRL, and they have a combination of stable and unstable, then why are all their conditions up for reevaluation?

I mean, what's the point of even using "stable" for rating a physical unfitting condition, then if the SM has only one MH unfitting, regardless of time and treatment/diagnosis, they are placed automatically on TDRL.

Then, during TDRL reexam process, all the SMs conditions - stable and unstable - physical "stable" included - they are all reevaluated?

This seems disengenuous to me. Just another game.... Some kind of double standard....

That's what I don't understand - along with rarely allowing a stable rating for any/all MH issues.

It's hard enough to get the Army to come up with a correct MH diagnosis/treatment - let alone, get a proper/correct rating.

v/r,
nwlivewire
 

Gonthier24

PEB Forum Regular Member
#16
My husband was placed on TDRL June 10 2007 and it hit 5 years Sunday. We have not heard a decision yet on them either extending it or placing him on the permanent list. Therefor our deers was canceled canceling our only insurance that we have. I am wondering what I can do, we are making phone calls to see if anyone has heard the outcome but I don't know where to go or what to do. I have contacted our local senator that has been a great help to us but I am at loss on where to go and what to do. Can they extend it?
 

NDBravehart84

PEB Forum Veteran
#17
:confused:
My husband was placed on TDRL June 10 2007 and it hit 5 years Sunday. We have not heard a decision yet on them either extending it or placing him on the permanent list. Therefor our deers was canceled canceling our only insurance that we have. I am wondering what I can do, we are making phone calls to see if anyone has heard the outcome but I don't know where to go or what to do. I have contacted our local senator that has been a great help to us but I am at loss on where to go and what to do. Can they extend it?
When was the last time you heard from them? :confused:
 

Jayson69

PEB Forum Veteran
Registered Member
#19
Jason,
I was went through MEB in 2008 for COPD. I had final my out on 1 DEC 2008. I was 100% TDRL by the Army for COPD. I went through they Fast Track System from VA which they sent my stuff for Re-Evaluation. I had to Appeal the decision and they corrected everything and I was given 100% P/T which states I was warranted 100% for COPD due to Oxygen Therapy. I had a Lung Biopsy in November 2010 which shows Interstitial Lung Disease ( Constrictive Bronchiolitis ) . Since I am already Permanent and total for COPD, what are my chance it be made PDRL? This is my 1st look for Re-Evaluation, and I am hoping the right thing is going to be done. I appreciate the help in advance.
 

Jason Perry

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#20
The military tends to look most at prognosis over any VA findings of P/T. That said, your time on TDRL suggests that it is an either/or question of whether you are over 30% or not (at expiration of 5 year period, they have to finally adjudicate your case).
 
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