A class-action lawsuit is challenging the U.S. Navy’s Properly Referred Policy.
The legal action was filed on Feb. 2 in the United States District Court for the District of Columbia on behalf of Oscar D. Torres and former members of the U.S. Navy and Marine Corps who were wrongfully denied military disability retirement by the National Veterans Legal Services Program and Perkins Cole LLP.
“We aim to represent veterans who were wrongfully denied their military disability retirement due to procedural issues caused by the Navy’s Properly Referred Policy,” said Barak Cohen, partner at Perkins Coie LLP. “We hope that this lawsuit can provide relief for Mr. Torres and class members who suffered this procedural harm.:
The lawsuit challenges the Navy’s use of the policy to deny military disability retirement to Torres and other similarly situated service members, according to a release. A sailor or Marine who is retired for disability is entitled to monthly retirement payments and military medical care for the service member, his or her spouse, and the service member’s children while they remain dependents.
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When Torres was referred into the Navy’s Disability Evaluation System, the Navy Council of Review Boards followed the policy, which has since been revoked by the Navy. The policy explicitly barred the Navy Physical Evaluation Board from considering the disabling impact of any condition not properly referred to the PEB by listing it on the form used to initiate the DES process.
The lawsuit claims that the policy violated the legal obligation of the Navy, under statutory law and Department of Defense instructions, to consider "all medical conditions," including their combined effect, in making fitness determinations, not just those the Navy deemed “properly referred” on a particular form.
Torres served on active duty and in the reserves of the U. S. Marine Corps from Aug. 29, 2007 until Jan. 27, 2018, when he was honorably discharged from the military due to disability According to the release, Torres’ military service left him with disabling conditions of the back, shoulder, wrist, fingers and knees, ankles and hips as well as sleep apnea.
The PEB deemed only Torres’ back condition and sleep apnea to be “properly referred.” He was denied military disability retirement and provided only a one-time lump-sum disability severance payment.
The lawsuit argues that the Navy’s failure to consider all of Tores’ medical conditions was arbitrary, capricious, unsupported by substantial evidence, and contrary to law.
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The PEB was enforced from Sept. 12, 2016, until June 11, 2018. It is estimated that 10,000 U.S. Navy and Marine Corps veterans were wrongfully denied military disability retirement as a result of this unlawful policy.
The suit explains that “For years, the Program Manager for the Navy Disability Evaluation System Counsel Program decried the policy as ‘wrong’ and ‘contrary to both law and regulation.’”
The Army, Air Force, and Coast Guard each have military disability evaluation procedures, but none of these service branches had a policy restricting the conditions that can be considered when making a fitness for duty determination like those contained in the Navy’s policy,
“To preclude the Navy from considering all of the medical conditions of sailors and Marines being discharged for disability denied Mr. Torres and potentially thousands of other veterans from their rightful military disability retirement and the benefits associated with that status,” said National Veterans Legal Services Program Executive Director Bart Stichman. “That is unjust and an affront to their dedicated service and the injuries they sustained in service.”
If you are a Navy or Marine Corps veteran who was denied a medical retirement as a result of the Properly Referred Policy, email to learn more about the case.
Reach Julia LeDoux at Julia@connectingvets.com.
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