If you were one of the 3,700 sailors or Marines who underwent your final Physical Evaluation Board (PEB) between September 12, 2016, and June 11, 2018, you may be eligible to have your PEB finding reassessed. 

This comes after The United States District Court for the District of Columbia found the Navy policy used from 2016-2018, the Properly Referred Policy, to be unlawful.

In response, the Department of the Navy has established a special board called the Class Action Review Board (CARB) to reevaluate the PEB findings for affected Veterans who received medical separation when they may have been entitled to medical retirements. 

In the letters to eligible Veterans, the Department of the Navy explains the process for requesting a review and what Veterans need to do if they choose to pursue it. Here, we’ll explain why the policy was found to be unlawful, and what you can do if you’re eligible for reassessment. 

Did you undergo your final PEB between September 12, 2016 and June 11, 2018? You could be eligible for a reassessment. 

Torres v. Del Toro: A Quick History

The establishment of the CARB all circles back to the Properly Referred Policy. The Properly Referred Policy was established by the Navy to define which medical conditions would be considered by the Initial Physical Evaluation Board (IPEB) and the Formal Physical Evaluation Board (FPEB) during the Disability Evaluation System (DES) process.

According to the policy, conditions would not be considered by a PEB if they weren’t:

1. Addressed in a Medical Evaluation Board (MEB) report, narrative summary, or medical addendum,

2. Supported by a VA disability examination, and

3. Listed on a specific Navy Medical Department (NAVMED) form, dated, and signed by the convening authority.

Therefore, any medical condition that wasn’t ‘properly referred’ by the MEB was not considered by the PEB. This resulted in conditions being excluded simply because they weren’t documented according to the policy’s requirement.

Ultimately, countless Veterans were denied because their conditions weren’t considered ‘properly referred.’

Torres’ Case was a Perfect Example of the Properly Referred Policy’s Failure

Oscar Torres, the class-action lawsuit's plaintiff, is a perfect example of the way Properly Referred Policy fails to give Veterans the consideration and compensation they need. Torres began the DES process with certain medical conditions and added 25 more to his disability evaluation form (VA Form 21-0819).

Despite that, the MEB only referred two of Torres’ conditions to the PEB: sleep apnea and spondyloarthropathy, a chronic inflammatory joint disease. The IPEB rated him unfit due to spondyloarthropathy with a 10% disability level, and his sleep apnea was considered fitting. The FPEB maintained this rating despite Torres's argument for a higher combined disability rating due to the other conditions.

The Properly Referred Policy is Canceled and Torres Bring a Class Action Suit

The Navy discontinued the Properly Referred Policy in June 2018, but by that point, damage had been done to Torres and countless others. Moreover, the Navy didn’t provide relief or reassessment options to the Veterans who claimed they were wrongfully denied medical retirement due to the policy.

Torres, finding himself in this situation, filed a class-action suit under the Administrative Procedure Act (APA). Torres claimed the policy deprived him and other veterans of rightful disability retirement and benefits.

Torres argued that the Navy's application of the Properly Referred Policy didn’t comply with 10 U.S.C. § 1222(a). That statute mandates that PEB decisions must address each issue presented by the service member in an orderly and itemized manner. However, the Properly Referred Policy excluded any conditions not "properly referred" by the MEB from consideration by the PEBs.

Torres's case illustrates the policy's effect simply. Several of his medical conditions were not considered by the PEB because they weren’t referred to by the MEB, despite the requirements of § 1222(a).

Ultimately, the Court found the Navy’s policy in violation of the statute and decided to vacate and set aside the PEB decisions for each member of the class-action suit.

What to do if You’re Eligible For Reassessment

Because of the ruling in Torres V. Del Toro, PEB decisions made during the eligibility window have been sent back to the Navy for review. This means that if you had your final PEB during that time period, you could be eligible for reassessment.

Here’s what you’ll need to qualify:

• You had your final PEB between September 12, 2016 and June 11, 2018.

• You claimed medical conditions that weren’t listed on your official NAVMED Form 6100/1.

• You didn’t receive "medical retirement" through the Integrated Disability Evaluation System (IDES).

If you qualify, you should have received a letter giving you the following options:

1. You can request a further review of your PEB findings by submitting an Election of Options (EOO) form and any new evidence to CARB/PEB within 180 days.

2. You can do nothing, in which case your case will be closed after 180 days without affecting your current status and benefits.

3. You can accept the original findings and return the Election of Options form, leading to the closure of your case.

Important Things to Know Before Requesting a Review

If you were medically separated from the Navy or Marine Corps. during the eligible time period, you may be able to receive an upgrade to medical retirement. Before you request a review, keep the following tips in mind. 

Don’t Be Intimidated To Request a Reassessment

If you choose a review, your case will follow an informal Class Action Review Board (CARB) process and potentially a formal hearing. While the outcomes you see from this review could be higher or the same, the Navy states that your outcome could also be lower than your original findings.

This is crucial to keep in mind because you can’t go back to your original findings once new findings are issued. However, don’t let this information intimidate you from looking into your options, especially if you made numerous claims that were never excluded from your final PEB.

Submit Evidence Not Included in Your PEB

If you choose a review, it’s important to provide additional contemporary evidence to support your claims. This can be medical evidence, such as medical documentation, diagnoses, nexus letters from private healthcare providers, or non-medical evidence such as buddy letters.

Time Is Of The Essence

It’s vital to start planning your course of action as soon as possible. Once you receive your EOO form, you’ll need to submit it to the CARB by email or post within 180 days of the date on your notice. The earlier you can get a start, the more time you’ll have to gather evidence for a review.

Trouble With Your MEB or PEB? Turn to Michael D.J. Eisenberg

If you underwent your final PEB during the eligibility period, you should have received a letter notifying you of your opportunity to be reassessed. You may be able to receive additional benefits that you were previously denied.

To get a second opinion from someone experienced with the medical separation and retirement process, turn to the Law Office of Michael D.J. Eisenberg. Mr. Eisenberg can add context to the nuance of your circumstance, help you plan the most beneficial course of action and possibly represent you before the CORB.

To schedule an initial consultation, call Mr. Eisenberg today.

Note: Consultations for Medical/Physical Evaluation Boards and Military Records Issues are paid; however, Veterans’ Benefits Appeals Matters are free.