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D.C. Circuit Invalidates Denial of Medical Retirement to Soldier Injured in Iraq

Released 8/1/23 | Tags: Class Actions, Veteran's Benefits

D.C. Circuit Invalidates Denial of Medical Retirement to
Soldier Injured in Iraq Deployment

-Court holds Army rating and fitness determinations
contrary to law for contributing condition-


ARLINGTON, VA —On July 28, 2023, the United States Court of Appeals for the District of Columbia Circuit ruled in favor of Jason Sissel, an Operation Iraqi Freedom Army veteran who was wrongfully denied military medical retirement. The court found that the Army’s decision was not entitled to heightened deference and that the Army violated the law when assigning no rating to his injured leg.

A Soldier who is medically retired 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. Mr. Sissel injured his back and leg in a motor vehicle accident while deployed to Iraq in 2003. He was provided disability processing, which found that both his back and leg were unfitting, preventing his continued service. However, the Army provided no rating to his unfitting leg condition, resulting in a disability severance instead of medical retirement. This decision was upheld by the Physical Disability Board of Review (PDBR) and the D.C. District Court.

In Sissel v. Wormuth, the D.C. Circuit rejected the Army’s decision. The Army claimed entitlement to heightened deference for the PDBR’s rating decision. The D.C. Circuit disagreed, stating that ordinary arbitrary and capricious review was warranted for disability rating decisions impacting the compensation of veterans. The court recognized that review under the arbitrary and capricious standard “would not destabilize military command.” The court’s rejection of heightened deference will now apply to other veterans seeking court review of PDBR decisions.

Applying the arbitrary and capricious standard, the D.C. Circuit found that the failure of the PDBR to confer any rating on the leg condition violated the law. The court pointed out that both Army regulations and the governing statute “confirm an obligation” to rate conditions that contribute to an unfitting condition and are “collectively” unfitting. Because the PDBR had found that the leg condition was collectively unfitting with the back condition, it was “contrary to law” not to confer a rating. The Army asserted that the contribution of the leg condition was not “significant,” but the court rejected the Army’s “add-on” of a requirement of a significant contribution as contrary to law. 

The court remanded the case for proceedings consistent with its opinion. Mr. Sissel is represented by the National Veterans Legal Services Program (NVLSP) and Latham & Watkins LLP.

“This is a precedential decision that reverses a medical retirement denial based on improper ratings and fitness determinations and marks a major victory for veterans,” said Esther Leibfarth, Senior Staff Attorney at NVLSP. “Going forward, we hope that the Court’s ruling will help many veterans obtain proper application of governing regulations and law to obtain medical retirement benefits they have earned through their service.”

“It was our pleasure to assist Mr. Sissel in fighting for the benefits entitled to him as a veteran of our Armed Forces,” said Bradley Hyde of Latham & Watkins. “The D.C. Circuit’s decision establishes strong precedent that will help similar veterans who were denied adequate disability by the Physical Disability Board of Review.  We’re also grateful to have worked again with NVLSP on yet another win for veterans.”

If you are a veteran who was denied a medical retirement as a result of an improper rating or fitness determination, NVLSP encourages you to email info@nvlsp.org to learn more about this case and our services.

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 $5.4 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.

About Latham & Watkins
Latham & Watkins delivers innovative solutions to complex legal and business challenges around the world. From a global platform, our lawyers advise clients on market-shaping transactions, high-stakes litigation and trials, and sophisticated regulatory matters. Latham is one of the world’s largest providers of pro bono services, steadfastly supports initiatives designed to advance diversity within the firm and the legal profession, and is committed to exploring and promoting environmental sustainability.

Media contact:
For NVLSP: Patty Briotta, office 202-621-5698, patty@nvlsp.org
For Latham & Watkins: Jessica Allen, 212-906-2983, jessica.allen@lw.com

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