The Department of the Navy has begun notifying more than 3,700 medically discharged sailors and Marines of their eligibility for a new physical evaluation board hearing -- one that could result in an upgrade to medical retirement.
Over the next several months, eligible veterans medically discharged between Sept. 12, 2016, and June 11, 2018, are to receive a letter from the Secretary of the Navy Council of Review Boards asking whether they want to have their cases reconsidered.
Those eligible include personnel discharged during the designated period whose qualifying conditions were listed by their medical evaluation board and sent to their physical evaluation board and who were medically separated with a combined disability rating of 20% or less.
Veterans who request a review must apply within 180 days of the date of the letter. They will be asked to spell out their end goal of medical retirement and provide any additional medical or non-medical evidence they may have to bolster their case.
The reviews will be done by a special class-action review board and will consist of a documentation review by a physical evaluation board, followed by a decision. If the veteran is not satisfied with the results of the board, they may request a formal hearing, followed by a petition for relief if necessary.
The review stems from a federal judge's decision last year in the case Torres v. Del Toro, which found the Navy improperly dictated that the only medical conditions considered for disability by the physical evaluation board were those specifically listed by a medical evaluation board.
Under the policy, which was rescinded in 2018, physical evaluation boards were barred from considering any other medical conditions that weren't "properly referred" to them.
The judge ruled that the policy "was unlawful in its effect on the physical evaluation board decisions" on plaintiffs in the class-action suit, and he subsequently vacated their decisions, ordering the Navy to review the cases.
But the strongly worded letters being sent to veterans are not sitting well with the attorneys who worked on that legal case.
Esther Leibfarth, a senior staff attorney at National Veterans Legal Services Program, or NVLSP, said Thursday that the letters are "confusing" and appear to "disincentivize people from applying for a benefit for which they were previously denied."
The letters say the process is not "bound by the original findings," meaning that the review could result in medical retirement, but the decision could also be the same or lower than the original findings.
"Once new findings are issued through the re-adjudication process, however, there is not an option to go back to the original findings," according to a copy of the letter provided by the NVLSP.
Leibfarth said she fears veterans may not request a review out of fear of losing their Veterans Affairs disability benefits or receiving a lower VA disability rating -- neither of which is tied to the Defense Department medical discharge evaluation process.
The DoD medical and physical evaluation board process determines only whether a member is fit for duty, should be placed on the temporary disabled/retired list, separated or medically retired.
"I think this is couched in a way to dissuade people from applying," Leibfarth said. "The answer is that if you think you should have been retired, you should apply for retirement benefits."
Service members who are discharged from the military for medical disabilities have access to Veterans Affairs health care and disability compensation. Those who are medically retired, however, receive military retirement pay as well as disability compensation and have access to many Defense Department benefits, including the Tricare health program and installation facilities such as commissaries, exchanges, fitness centers and recreation.
The original case was filed in February 2021 by Oscar Torres, a Marine who served from August 2007 until his medical discharge in January 2018. During his time in service, Torres sustained injuries to his back, shoulder, wrist, fingers, knees, ankles and hips, and he was diagnosed with an inflammatory rheumatic disease. He also suffered from sleep apnea.
A Navy medical evaluation board referred the back condition and sleep apnea to the physical evaluation board and concluded that the rest of the conditions did not make him unfit for duty. Based on the conditions that were "properly referred," the physical evaluation board found Torres unfit for duty for his back issue at 10% and fit for sleep apnea.
Falling short of the 30% disability decision required to receive medical retirement, Torres was given a lump-sum disability severance payment.
He argued in his suit that the Navy's policy not to consider all medical conditions was unsupported by evidence, arbitrary and contrary to law.
According to the NVLSP, there is a chance that if a veteran applies for a reevaluation and is awarded medical retirement, they would have to pay back any disability severance pay that already has not been recouped by the Department of Veterans Affairs. For combat vets, however, that may be offset by Combat Related Special Compensation.
NVLSP has published a set of frequently asked questions to provide guidance to veterans considering a request for medical retirement, and free legal assistance is available through NVLSP's Lawyers Serving Warriors pro bono program.
The Navy also is providing free legal counsel to eligible veterans through its Disability Evaluation System Counsel Program, which can be reached by calling (202) 875-1198 or emailing DESCP_TorresUnit@us.navy.mil.
According to the letter, veterans can choose to do nothing, inform the council via a form that they accept their current status, or request a further review within 180 days from the date of their letter.
Leibfarth urged veterans who believe they may be eligible to contact these free legal outlets for assistance and not wait to receive a letter from the Navy.
"There really is nothing to lose. There is a small chance, I guess, that you could be found fit for duty, but there would be benefits to that. The Navy also would have to explain why their entire decision previously was wrong," Leibfarth said.