I’m 100% Disabled but the PEB Placed Me on the Temporary Disability Retirement List!

By: Joel Pettit • May 11, 2023

Go to any Physical Evaluation Board (PEB) forum, blog, or Facebook page and you will inevitably find several threads trying to make sense of how severely disabled Service members can be temporarily disabled; especially when the VA, their treating physicians, and even the PEB acknowledges the unfitting conditions’ permanency. Confused? You’re not alone. In fact, if you are not thoroughly confused, you are either lying, too confused to know it, or an experienced PEB attorney.

The key to the analysis is not whether a condition is permanent, but whether the condition’s symptoms are stable for DoD rating purposes. I emphasize “DoD rating purposes” because some of the VA proposed rating letters in these cases will explain not only are the Service members 100% disabled, but also that their unfitting conditions are permanent. Notice I focused on the VA proposed ratings letter, not on the DoD IPEB or FPEB rationale that accompanies each board’s determination. Knowing the reasoning behind combining the old DoD medical retirement process and the VA disability benefits system into the Integrated Disability Evaluation System (IDES) makes everything clear: DODI 1332.18 clearly explains the two systems were combined to ensure wounded, ill, or injured veterans receive their VA benefits immediately upon exiting the Armed Services. This method allows those veterans who most need VA benefits to avoid the lengthy delay (sometimes exceeding a year) that most Services members endure before receiving their VA benefits. Furthermore, DODI 1332.18 also makes it abundantly clear that combining the systems was not intended to strip any of the Armed Services’ authority to evaluate whether Service members are physically able to successfully complete their duties.

Although this may appear to be an obscure point, it explains why it is crucial to understand that although the IDES is an integrated system, it has been and always will be two systems running in parallel. The quintessential example of this parallel structure is displayed each time the DoD re-rates a Service member who has been temporarily retired and placed on the TDRL: although these rating decisions have no impact on the Service member’s VA disability rating or overall VA disability percentage, these DoD disability ratings do determine whether Service members are separated with severance pay, retained on the TDRL, or placed on the Permanent Disability Retirement List (PDRL). This is why many military disability retirees who endured the TDRL before moving to the PDRL will forever have two different disability ratings for the same condition – a VA disability rating and a DoD disability rating.

Accordingly, although the DoD and VA work simultaneously throughout the IDES, they do not necessarily work together. Notwithstanding, we can now better comprehend a temporary disabled status stemming from a permanent condition. For instance, a Service member may have a permanent lower back condition, but the symptoms from that condition may improve significantly over the statutory 3-year TDRL period. This is generally the case when a Service member has suffered a severe back injury that will require years of recovery to fully understand the long-term symptoms; this is what the PEB considers “stable”. If a condition is stable, the PEB believes the symptoms the Service member is experiencing will not vary significantly in the long-term. Therefore, when a Service member loses a limb, the PEB can confidently categorize the condition as “stable” for rating purposes because the limb is never growing back. Conversely, applying the same logic to Services members medically retired due to mental health conditions generally leads the PEB to place them on the TDRL; it is extremely difficult to ascertain the severity of symptoms stemming from a mental health condition while Service members are on active duty, especially when military service is an exacerbating factor.

Believe it or not, all the above is just the tip of the iceberg. What appeared to be a simple typo – a “T” instead of a “P” in front of the “DRL” – usually turns out to be an extremely complex analysis that can result in anything from a TDRL, PDRL, Separated with Severance, or even a Fit finding. At Joel Pettit Law, we have the experience and intellectual horsepower to efficiently spot nuanced issues like the ones discussed above. Our goal is to not only ensure our clients win their cases, but also educate them along the way, providing the peace of mind they have lost through needless confusion and frustration. Please contact us to discuss your case and, hopefully, return a semblance of normalcy to your life.

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