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NVLSP Secures Win for Thousands Navy, Marine Vets Wrongfully Denied Disability Retirement

Released 9/29/22 | Tags: Class Actions, Veteran's Benefits

NVLSP Secures Federal Court Win for Thousands of Navy and Marine Corps Veterans Who
Were Wrongfully Denied Disability Retirement

- More Than 3,700 Navy and Marine Corps Veterans
Awarded New Military Disability Retirement Processing-


FOR IMMEDIATE RELEASE: September 29, 2022

WASHINGTON—On September 28, 2022, the United States District Court for the District of Columbia granted summary judgment in favor of a class of U.S. Navy and Marine Corps veterans who were wrongfully denied military disability retirement. The class action lawsuit was filed by the National Veterans Legal Services Program (NVLSP) and pro bono counsel Perkins Coie LLP on behalf of Oscar D. Torres and Navy and Marine Corps veterans.  The lawsuit challenged 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 for the servicemember and family.

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 the Navy has since revoked, 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 Court held that the policy “was unlawful in its effect on the physical evaluation board decisions for Mr. Torres and the class members.” The Court vacated PEB decisions for each class member and remanded the matter for further proceedings consistent with the order. 

Mr. 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, knees, ankles, and hips as well as sleep apnea.  He was referred into the DES for review of these injuries, yet the Navy 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 argued 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 at least 3,700 Navy and Marine Corps veterans were denied military disability retirement as a result of this policy.

“I shared my story about how the Navy’s ‘Properly Referred Policy’ affected me, and I know that I am far from alone. There are thousands of similarly-situated servicemembers like myself affected by the Navy’s ‘Properly Referred Policy.’ Thank you to NVLSP and pro bono counsel, Perkins Coie LLP, in helping us advocate for a remedy,” said Mr. Torres.

“We are thrilled that the Court has invalidated the unjust ‘Properly Referred Policy. We are hopeful that the Court’s ruling will bring long overdue 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 Navy’s Properly Referred Policy was unlawful. We hope that this lawsuit can provide relief for Mr. Torres and the thousands of class member veterans who were denied a full review of their disabling conditions. Today’s decision is an important step toward this 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.

About Perkins Coie LLP
Perkins Coie LLP is a leading international law firm that is known for providing high-value, strategic solutions and extraordinary client service on matters vital to its clients’ success. With more than 1,200 lawyers in offices across the United States and Asia, Perkins Coie LLP provides a full array of corporate, commercial litigation, intellectual property, and regulatory legal advice to a broad range of clients, including many of the world’s most innovative companies and industry leaders as well as public and not-for-profit organizations. For more information about Perkins Coie LLP’s commitment to pro bono, go to https://www.perkinscoie.com/en/about-us/firm/pro-bono/.

Media contacts:
For NVLSP: Patty Briotta, office 202-621-5698, patty@nvlsp.org
For Perkins Coie LLP: Justin Cole, office 202-654-6310, jcole@perkinscoie.com

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