A case study in why TDRL reviews require more than a rubber stamp — and why diagnostic errors are the first thing I look for. A service member was about to lose his retirement over a conversion disorder diagnosis. The military neurologist had never ordered an EEG.
When the Diagnosis Is Wrong: How a Missed EEG Changed Everything
A case study in why TDRL reviews require more than a rubber stamp — and why diagnostic errors are the first thing I look for.
About 15 years ago, a service member came to me to appeal his findings after a Temporary Disability Retirement List reevaluation. He had originally been placed on the TDRL through the IDES with a diagnosis of conversion disorder, rated at 30% disability. Upon reevaluation, the Informal Physical Evaluation Board had reduced that finding to 10% disability severance — a result that would have cost him his retirement and a significant portion of his benefits.
The Diagnosis at the Center of the Case
The condition at issue was conversion disorder — a diagnosis in which a mental health issue disrupts normal neurological function, producing very real physical symptoms such as seizure-like episodes, muscle weakness, or sensory loss. Today it would be classified as a functional neurological disorder. The military neurologist who made this diagnosis had concluded that my client suffered from psychogenic seizures.
There was one problem: he had never ordered an EEG to confirm it.
Compounding this failure, the VA Compensation and Pension examiner who reviewed the case never questioned the diagnosis, ordered further testing, or sent the case back for additional development. To me, these were serious errors — not technicalities, but the kind of diagnostic shortcuts that determine whether a service member retires with full benefits or walks away with almost nothing.
What We Did
I had his post-service TRICARE provider refer him to an independent neurologist. After extensive testing, he was found to have a focal point seizure disorder — a real, documentable neurological condition that had never been properly identified.
Armed with that diagnosis, I filed a Formal PEB brief requesting that the panel overturn his previous findings entirely and award him a 60% Permanent Disability Retirement List rating for his seizure disorder.
The FPEB gave us an on-the-record decision — overturning the original diagnosis and awarding the 60% PDRL rating we had requested. We then returned to the VA and successfully appealed the errors made on that side of the case as well.
What I Learned — and What I Do Differently Because of It
This case permanently changed how I approach every TDRL review I handle. Before I evaluate the merits of a reevaluation finding, I now review the original case file specifically for:
- Diagnostic errors or unsupported conclusions — Was the diagnosis actually established, or was it assumed?
- Tests that were never ordered but should have been — A diagnosis that was never confirmed by appropriate testing is a diagnosis that can be challenged.
- Errors or gaps in the original VA C&P examination — C&P examiners are not infallible. If the examiner failed to develop the record or accepted a flawed diagnosis without question, that is grounds for appeal.
- Records from outside treating providers that were not given proper consideration — Post-service treatment records, independent specialist evaluations, and private medical opinions can all be introduced to challenge an original finding.
In TDRL cases, the original finding is not a finished product. It is a starting point — and sometimes, it is simply wrong.
What This Means for You
If you are approaching a TDRL reevaluation, do not assume your original findings are accurate or final. The reevaluation process is not designed to catch errors in the original diagnosis. It is designed to assess whether your condition has stabilized — and it will proceed on the assumption that the original diagnosis was correct unless someone challenges it.
That is what I do.
For more on the risks of TDRL reevaluations, see our post on the perils of having a TDRL reevaluation based on your VA rating. Our TDRL and BCMR review page explains the full process and your options if a reevaluation goes wrong. If the FPEB is the right vehicle for your challenge, our post on what happens at a Formal PEB hearing explains what to expect.
I review TDRL cases nationwide and work with clients overseas. The earlier we look at your file, the more options we have.
Call 757-481-0772 for a free consultation.
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Written by
John B. Gately, Attorney & Counselor at Law
Content creator and writer sharing insights and stories.
