The Court of Federal Claims recently re-emphasized that correction boards cannot summarily dismiss the findings of the Department of Veterans Affairs (VA) relative to disability.

In McCabney v. United States an Army veteran was determine unfit based on bunions but the Veteran disagreed with his rating.  VA had conducted an examination shortly before discharge and it assigned him a combined 50% rating for flat foot and bunions.  However, the Army refused to honor the VA rating contending that the Veteran's flat foot was not unfitting

On appeal, the Court of Federal Claims said that the Army BCMR had not given sufficient weight to the VA findings.  The Court noted that the VA exam occurred shortly prior to discharge and while a correction board can give less weight to VA materials, it cannot ignore them.  A mere mention of a VA exam in the board's opinion is insufficient.  The Court criticized the Army's reliance on years old medical records instead of the VA exam.

Correction boards often wave away VA decision based on the fact that they do not control the unfitness determination.  The McCabney case says more is needed to disregard a VA determination. 

The United States Court of Appeals for the Federal Circuit affirmed the denial of disability benefits to a reservist who had a stroke while performing mandated physical fitness exercises.  

Mr. Pipes was a captain in the Air Force.  He was out of shape and told by his commander to participate in a "voluntary" self-paced fitness program that included running.  While out on a run he had a stroke.  Pipes contended that he was in Inactive Duty for Training (IDT) status because his commander ordered him to perform the fitness program.  The Air Force Board for Correction of Military Records disagreed.  On appeal, the Court of Appeals affirmed because Pipes did not have the necessary written authorizations from his Commander required to perform the IDT.

The result in this case seems unfair and illustrates the difficulties in litigating with the Federal Government.  The doctrine of estopped by conduct would seem applicable here, but that doctrine  cannot be applied against the United States.  The Court could have found a way to provide relief by stating that AFBCMR abused its discretion in not finding an injustice, but it does not appear that issue was pressed by counsel.  That argument is a reach in any event.

The case is Pipes v. United States and it was decided on December 16, 2024.

​Several weeks ago, the Court of Federal Claims breathed new life into a statute of limitations exception that was both old and obscure.  That was the “half a loaf” doctrine announced by the old Claims Court more than fifty years ago.  It is  discussed in a previous post.  Now the Court has revived another statute of limitations exception recognized by the Claims Court decades ago. The case is Wheless v. United States, and it was handed down on October 8, 2024.
 
The Wheless case discusses the Eicks exception to the six-year statute of limitations to file in the Court of Federal Claims.  That 1959 case involved a veteran who secured a favorable decision from the Navy's correction board, but that decision was overturned by the Secretary.  This veto of a favorable correction board or discharge review board decision happens more than occasionally in discharge upgrade cases, but it can happen in other cases as well.  In Eicks the old Claims Court held the statute of limitations ran from the date of the Secretary's decision refusing to implement the correction board's action. 
 
In Wheless the Court was asked whether Eicks remained good law.  The Court found it does and it allowed the claim to proceed.

Is it unjust for a Formal Physical Evaluation Board (FPEB) to lower a compensable military disability rating to a non-compensable one when a veteran appeals an informal PEB (IPEB) decision on an issue other than the rating?  The Board for Correction of Naval Records (BCNR) says it is unjust.
 
In a 2023 case a former Marine was granted a 50% rating by an IPEB and placed on the Temporary Disability Retired List.  The veteran appealed to a FPEB which lowered his rating to a non-compensable 10%.  The BCNR found the FPEB decision to be erroneous on technical grounds and also said it was unjust.  The Board reasoned that since the only question presented to the FPEB on appeal related to the decision to give the veteran temporary status, it was wrong for the FPEB to take upon itself to reassess the 50% rating.
 
The BCNR stated: “Petitioner should not be deterred from exercising his right to a formal hearing to challenge a decision by the IPEB for fear that the FPEB may produce a less favorable result.”
 
The case may be found on the Boards for Review Reading Rooms web site and the BCNR docket number is 990-23 

While the Board for Corrections of Naval Records (BCNR) rarely issues discharge upgrades, it is more receptive to removing the words "personality disorder" from the narrative reason for separation box on a veteran's DD-214 certificate of discharge.

For many years the Navy discharged sailors with minor conduct problems seeming to stem from mental health issues with a "personality disorder" diagnosis.   This enabled the Navy to avoid sending the sailor into the disability evaluation system for a more thorough mental health evaluation.  In March 2012, the Vietnam Veterans of American, in conjunction with Yale Law School, issued a report entitled "Casting Troops Aside: The United States Military’s Illegal Personality Disorder Discharge Problem" 

The BCNR appears to accept that having the words "personality disorder" on a DD-214 is unfairly stigmatizing and may direct the issuance of DD-214s without those words.  The BCNR will substitute the words "Secretarial Authority" in the reason box.

The VVA report can be found at the following link:  
https://law.yale.edu/sites/default/files/documents/pdf/Clinics/VLSC_CastingTroopsAside.pdf
​

​For the first time in seven years, the Court of Federal Claims has discussed the “half-a-loaf” doctrine as it applies to the six-year statute of limitations for bringing a lawsuit in the court.  The case is Johnson v. United States, and it was decided on September 6, 2024
 
The “half-a-loaf” doctrine states that where a corrections board determination gives partial relief, but denies a claimant the full relief he seeks and to which he is entitled, a new cause of action may arise.  The case was last explained by the Court of Appeals in DeBow v. United States in 1970.  The Court of Federal Claims has cited the doctrine only nine times since the year 2000 in reported cases.
 
In Johnson’s case, the Board for Corrections of Navy Records said that the initial denial of military medical retirement benefits due to his injuries being incurred “not in the line of duty” was an error, and it referred the case to the Physical Evaluation Board for assignment of a rating.  However, the PEB determined that Johnson was not unfit.  The Court of Federal Claims analyzed his case under the “half-a-loaf” doctrine, but found it did not apply and that his case was still barred by the six-year statute of limitation period that ran from the date of the initial PEB decision.  Still, the fact that this somewhat obscure exception was brought forward by the court after so many years is significant. 
 
Since the “half-a-loaf” doctrine has not been revisited by the Federal Circuit for more than 50-years, it may be open to liberalizing this exception to the statute of limitations in medical military disability cases. 

​Reservists who were removed from active duty due to the Department of Defense COVID vaccination policy can sue for back pay in the Court of Federal Claims.
 
The Court held that only reservists who were on active duty and were removed from that status for failure to vaccinate can have a claim for back pay under established precedent.  For such reservists, the Court held that the unlawful removal claim survived a motion to dismiss filed by the Government.  The plaintiffs might have valid claims under the Military Pay Act because the removal violated the Militia Clause of the United States Constitution, the statutory prohibition on the mandatory use of unlicensed FDA products, and a violation of the Religious Freedom Restoration Act.  Importantly, the Court did not say that such violations occurred.  The Court only held that the pleadings in the case were sufficient to move the case forward to discovery.
 
The case is Botello v. United States and it was decided on August 22, 2024.

​Proof of an in-service stressor for post-traumatic stress disorder (PTSD) is not required for military medical retirement claims.  Rather service-connection is presumed if symptoms emerged while the veteran was in service.
 
In Ford v. United States, 170 Fed. Cl. 300 (2024), the Court of Federal Claims held that VA proof standards for PTSD do not apply to military medical retirement claims.  The Court also held that the Board for Corrections of Navy Records (BCNR) was required to apply the same standards for adjudicating disability retirement claims as would be applied by a Physical Evaluation Board.  This is primarily whether the veteran could perform his or her common military tasks at time of separation.  There are additional factors that must be considered as well, including deployability and danger to self or others.

The BCNR rarely (if ever) conducts the required analysis. The Ford decision was announced on August 6, 2024.