Released 1/26/23 | Tags:
Federal Circuit Invalidates Denial of Liberal Consideration for
Medical Retirement Application of Vietnam Era Navy Veteran
-Court holds liberal consideration statute and guidance apply to
veterans seeking relief based on Post-Traumatic Stress Disorder-
FOR IMMEDIATE RELEASE: January 26, 2023
ARLINGTON, VA —On January 25, 2023, the United States Court of Appeals for the Federal Circuit ruled in favor of Robert Doyon, a Vietnam era Navy veteran suffering from Post-Traumatic Stress Disorder (“PTSD”) who was wrongfully denied military medical retirement. Significantly, this holding requires every Board for Correction of Military Records to apply liberal consideration to applications, like Mr. Doyon’s, that seek a medical retirement for PTSD.
A Sailor or Marine 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. Doyon experienced PTSD from his Vietnam service in the late 1960s, but instead of receiving disability processing, he was wrongfully separated for “unsuitability due to personality disorder.” At the time of his discharge, PTSD was not a medically recognized diagnosis. Recent legislation and Department of Defense Guidance require the application of “liberal consideration,” which takes into account current medical knowledge of the symptoms of PTSD. However, the Navy argued that the statute and guidance requiring liberal consideration were not applicable to record correction applications seeking medical retirement.
In Doyon v. United States, the Federal Circuit held that liberal consideration applies, pursuant to both 10 U.S.C. § 1552(h) and the Department of Defense’s Kurta memorandum, to all requests to correct the narrative reason on a veteran’s discharge certificate or DD-214, where the correction sought is based in whole or in part on matters related to PTSD. Mr. Doyon asked the Board for Correction of Naval Records (“BCNR”) to change the narrative reason for his discharge indicated on his DD-214 form from “unsuitability due to personality disorder” to a PTSD-related disability so that he would be eligible for disability retirement payments. His request was denied at the BCNR and then at the Court of Federal Claims, due to both the BCNR and Court erroneously determining that liberal consideration did not apply to claims for medical retirement. The case has been remanded for application of liberal consideration to his medical retirement claim. Mr. Doyon is represented by the National Veterans Legal Services Program (NVLSP) and Latham & Watkins LLP.
“This is a seminal decision that can lead to the reversal of numerous decisions denying liberal consideration to veterans experiencing PTSD. We are hopeful that the Court’s ruling will bring relief to the many veterans from all eras who were wrongfully denied medical retirement as a result of this improper refusal to apply the statute and guidance,” said Esther Leibfarth, Senior Staff Attorney at NVLSP.
“This decision is critically important, not only for Mr. Doyon, but also for all veterans who have suffered PTSD and been wrongly discharged on some other basis,” said Michael Clemente, of Latham & Watkins, who argued the case before the Court. “We are grateful for the Court’s ruling, and we appreciate the opportunity to assist Mr. Doyon in pursuing the benefits he is entitled to receive.”
If you are a Navy or Marine Corps veteran who was denied a medical retirement as a result of the denial of liberal consideration for PTSD, the NVLSP encourages you to email email@example.com 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.
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.
For NVLSP: Patty Briotta, office 202-621-5698, firstname.lastname@example.org
For Latham & Watkins: Jessica Allen, 212-906-2983, email@example.com