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Court Certifies Class Action in NVLSP Lawsuit Challenging U.S. Navy’s “Properly Referred Policy”

Released 10/27/21 | Tags:

Court Certifies Class Action in NVLSP Lawsuit Challenging
U.S. Navy’s “Properly Referred Policy”

-Up to 10,000 Navy and Marine Corps Veterans
Wrongfully Denied Military Disability Retirement-


WASHINGTON—On October 27, 2021, the United States District Court for the District of Columbia certified a class action in a case brought by the National Veterans Legal Services Program (NVLSP) and pro bono counsel Perkins Coie LLP, on behalf of Mr. Oscar D. Torres and former members of the U.S. Navy and Marine Corps who were wrongfully denied military disability retirement.  The lawsuit challenges the Navy’s use of the “Properly Referred Policy” to deny military disability retirement to Mr. Torres and other similarly situated servicemembers. A Sailor or Marine who is retired for disability is entitled to monthly retirement payments and military medical care (“Tricare”) for the servicemember, his or her spouse, and the servicemember’s children while they remain dependents.

At the time of Mr. Torres’s referral into the Navy’s Disability Evaluation System (DES), the Navy followed the “Properly Referred Policy.” That policy, which has since been revoked by the Navy, explicitly barred the Navy Physical Evaluation Board (PEB) from considering the disabling impact of any condition not “properly referred” to the PEB on a specific form.

The lawsuit claims that the “Properly Referred Policy” violated the legal obligation of the Navy 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. 

Mr. Oscar Torres served on active duty and in the reserves of the U. S. Marine Corps from August 29, 2007 until January 27, 2018, when he was honorably discharged from the military due to disability.  The rigors of military service left Mr. Torres with disabling conditions of the back, shoulder, wrist, fingers and knees, ankles and hips as well as sleep apnea.  He was referred into the Disability Evaluation System (DES) for review of these injuries. Yet, the Navy Physical Examination Board (PEB) deemed only his back condition and his sleep apnea to be “properly referred.” As a result, the PEB refused to consider whether Mr. Torres’ shoulder, wrist, finger, knee, ankle and hip issues rendered him unfit for continued military service.  Mr. Torres was denied a 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 Mr. Torres’ medical conditions pursuant to the Navy’s “Properly Referred Policy” was arbitrary, capricious, unsupported by substantial evidence, and contrary to law.

The “Properly Referred Policy” was enforced from September 12, 2016, until June 11, 2018.  In responding to the request for class certification, the Navy estimated that 3,776 U.S. Navy and Marine Corps veterans were denied military disability retirement as a result of this policy.

In granting class certification, the Court stated:

Here, class members in the present lawsuit seek declaratory and injunctive relief that will apply equally to all class members. That relief would compel the Navy to conduct new DES proceedings to reassess and recalculate procedurally unlawful PEB findings. An injunction would rectify this procedural harm equally for all class members.

“We are grateful that the court has ruled that this litigation may proceed as a class action to hopefully bring relief to the thousands of Sailors and Marines who were wrongfully denied disability retirement as a result of this illegal policy,” said Esther Leibfarth, Senior Staff Attorney at NVLSP.

“We appreciate the court’s ruling and its holding that the Sailors and Marines in the class presented common questions of law, namely whether the Properly Referred Policy unlawfully narrowed the scope of review of their disabling conditions. We hope that this lawsuit can provide relief for Mr. Torres and the thousands of class members who were denied a full review of their disabling conditions.  Certification of the class is a step toward that goal,” said Tommy Tobin, an associate at Perkins Coie LLP.

If you are a Navy or Marine Corps veteran who was denied a medical retirement as a result of the “Properly Referred Policy,” NVLSP encourages you to email properlyreferred@nvlsp.org to learn more about this case.

The National Veterans Legal Services Program (NVLSP) is an independent, nonprofit veterans service organization that has served active duty military personnel and veterans since 1981. NVLSP strives to ensure that our nation honors its commitment to its 22 million veterans and active duty personnel by ensuring they have the benefits they have earned through their service to our country. NVLSP has represented veterans in lawsuits that compelled enforcement of the law where the VA or other military services denied benefits to veterans in violation of the law. NVLSP’s success in these lawsuits has resulted in more than $5.2 billion dollars being awarded in disability, death and medical benefits to hundreds of thousands of veterans and their survivors. NVLSP offers training for attorneys and other advocates; connects veterans and active duty personnel with pro bono legal help when seeking disability benefits; publishes the nation's definitive guide on veteran benefits; and represents and litigates for veterans and their families before the VA, military discharge review agencies and federal courts. For more information go to www.nvlsp.org.

Media contact:
For NVLSP: Patty Briotta, office 202-621-5698, patty@nvlsp.org

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