Jason Perry
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I have attached some cases that concern PEB/disability appeals in the Federal Courts.
Case law
- Thread starter Jason Perry
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Don't forget Van Cleave v. US! It's recent and he won. Don't forget that you can't sue to have your PEB findings changed directly (Gant), BUT you can sue based on the BCMRs failure to correct errors made during your disability evaluation process (Van Cleave).
Good Luck!
Good Luck!
Jason Perry
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I need to format the decision, but I will post Van Cleave in the near future.
Van Cleave is a great case for many reasons. It shows that you can fight the bad decisions and win. However, you have to read it in the context of the fact that the BCNR basically made the Court very angry by ignoring its earlier remand order and by calling Van Cleave all sorts of names. You can tell the Court was very angry.
The question of which court and when you can file is a complex one. In most cases, to challenge a rating, you have to go to BCMR first and then sue in Federal Court. But, depending on the nature of the claim you are making, you may be able to skip going to BCMR. When and how this would apply requires analysis that you should get the help of an attorney in making.
Van Cleave is a great case for many reasons. It shows that you can fight the bad decisions and win. However, you have to read it in the context of the fact that the BCNR basically made the Court very angry by ignoring its earlier remand order and by calling Van Cleave all sorts of names. You can tell the Court was very angry.
The question of which court and when you can file is a complex one. In most cases, to challenge a rating, you have to go to BCMR first and then sue in Federal Court. But, depending on the nature of the claim you are making, you may be able to skip going to BCMR. When and how this would apply requires analysis that you should get the help of an attorney in making.
Jason,
I just got through with a preliminary reading of Van Cleave v. US in chorological order, the appeal and all three at uscfc …WOW…talk about a smack down for the BCNR!
I just got through with a preliminary reading of Van Cleave v. US in chorological order, the appeal and all three at uscfc …WOW…talk about a smack down for the BCNR!
When reading Van Cleave, be weary. Many of the arguments cite the now defunct DoDI 1332.39 (the proper instruction is DoDI 1332.38). One attack in this case that I don't mind reading is the language used by the BCNR in describing how many times the PEBs ratings are, "not warranted".
Carne, all due respect but I came away with a completely different interpretation . Once the US appellate court over ruled the USCFC in that the plaintiff’s waiver for a FPEB did not prevent him from appealing:
We dismissed plaintiff’s appeal upon the Government’s motion because Mr. Van Cleave had waived further review voluntarily, in compliance with applicable regulations. See Van Cleave v. United States, 60 Fed. Cl. 291 (2004) (Van Cleave I). Plaintiff appealed. The Federal Circuit ruled that voluntariness of the waiver was not the sole issue upon review. Van Cleave v. United States, 402 F.3d 1341 (Fed. Cir. 2005) (Van Cleave II). The Circuit asked that we determine the scope of plaintiff’s waiver in such circumstances: Did it include a waiver of any further administrative review of the PEB’s now-finaldecision? Apparently the Navy did not so read it, since it granted Van Cleave’s petition for a subsequent review of the case by the BCNR. Did it include a binding waiver of any right to judicial review? That for us is the $64 question. 3 Id. at 1344. We found that plaintiff’s voluntary acceptance of the informal PEB decision waived review by a formal Physical Evaluation Board, but did not necessarily prevent his appeal to the Board for Correction of Naval Records, which that Board accepted and considered on the merits. See Van Cleave, 402 F.3d at 1344 (“Apparently the Navy did not so read [plaintiff's waiver as precluding further administrative review], since it granted Van Cleave's petition for a subsequent
The USCFC correctly decided the case based on the fact that the BCNR applied DoDI 1332.39 (now moot) instead of the VASRD standard in the plaintiff’s case. The USCFC correctly used the VASRD standard that is based on FEQUENCY and not the more restrictive standard the DoD imposed base on "severity" as with DoDI 1332.39:
We expressed concern that Mr. Van Cleave might have been denied benefits improperly because the BCNR had rejected his appeal on the basis that his condition was insufficiently severe to justify a thirty percent disability rating. Van Cleave III, 66 Fed. Cl. at 137. The only factor that distinguishes a ten percent rating from a thirty percent rating is the frequency of the attacks, not their severity. If plaintiff’s medical records demonstrate that he suffered from chronic headaches and the VA Schedule Code for migraines is the appropriately analogous condition, his disability rating should have been reassessed based on the frequency of his prostrating attacks. Instead, the BCNR rejected plaintiff’s appeal because the Physical Examination Board found that Mr. Van Cleave’s condition was not sufficiently severe to justify a thirty percent disability rating.4 We asked the Board to clarify this apparent inconsistency.
Too bad it took twelve more years for Congress to throw out DoDI 1332.39 with the NDAA 2008. Think of the problems it would've avoided!
- SMSgt
We dismissed plaintiff’s appeal upon the Government’s motion because Mr. Van Cleave had waived further review voluntarily, in compliance with applicable regulations. See Van Cleave v. United States, 60 Fed. Cl. 291 (2004) (Van Cleave I). Plaintiff appealed. The Federal Circuit ruled that voluntariness of the waiver was not the sole issue upon review. Van Cleave v. United States, 402 F.3d 1341 (Fed. Cir. 2005) (Van Cleave II). The Circuit asked that we determine the scope of plaintiff’s waiver in such circumstances: Did it include a waiver of any further administrative review of the PEB’s now-finaldecision? Apparently the Navy did not so read it, since it granted Van Cleave’s petition for a subsequent review of the case by the BCNR. Did it include a binding waiver of any right to judicial review? That for us is the $64 question. 3 Id. at 1344. We found that plaintiff’s voluntary acceptance of the informal PEB decision waived review by a formal Physical Evaluation Board, but did not necessarily prevent his appeal to the Board for Correction of Naval Records, which that Board accepted and considered on the merits. See Van Cleave, 402 F.3d at 1344 (“Apparently the Navy did not so read [plaintiff's waiver as precluding further administrative review], since it granted Van Cleave's petition for a subsequent
The USCFC correctly decided the case based on the fact that the BCNR applied DoDI 1332.39 (now moot) instead of the VASRD standard in the plaintiff’s case. The USCFC correctly used the VASRD standard that is based on FEQUENCY and not the more restrictive standard the DoD imposed base on "severity" as with DoDI 1332.39:
We expressed concern that Mr. Van Cleave might have been denied benefits improperly because the BCNR had rejected his appeal on the basis that his condition was insufficiently severe to justify a thirty percent disability rating. Van Cleave III, 66 Fed. Cl. at 137. The only factor that distinguishes a ten percent rating from a thirty percent rating is the frequency of the attacks, not their severity. If plaintiff’s medical records demonstrate that he suffered from chronic headaches and the VA Schedule Code for migraines is the appropriately analogous condition, his disability rating should have been reassessed based on the frequency of his prostrating attacks. Instead, the BCNR rejected plaintiff’s appeal because the Physical Examination Board found that Mr. Van Cleave’s condition was not sufficiently severe to justify a thirty percent disability rating.4 We asked the Board to clarify this apparent inconsistency.
Too bad it took twelve more years for Congress to throw out DoDI 1332.39 with the NDAA 2008. Think of the problems it would've avoided!
- SMSgt
I think you misunderstood the implication of my statement (apologies).
DoDI 1332.39 was the governing regulation at the time of Van Cleave (thus the reason this instruction is cited so often), but for current servicemembers DoDI 1332.39 is NOT applicable. I was not trying to state if I felt 1332.39 was 'fair' or 'unfair' - rather, just to prevent new members from making the same mistake I did (I noticed DoDI 1332.39 and thought it was still applicable when I first got involved in all this).
As you stated, the NDAA implemented DoD 1332.38 as the current governing regulation. I agree that this case provided justice and should stand as an example to "stay the course" in the face of apparent injustice.
DoDI 1332.39 was the governing regulation at the time of Van Cleave (thus the reason this instruction is cited so often), but for current servicemembers DoDI 1332.39 is NOT applicable. I was not trying to state if I felt 1332.39 was 'fair' or 'unfair' - rather, just to prevent new members from making the same mistake I did (I noticed DoDI 1332.39 and thought it was still applicable when I first got involved in all this).
As you stated, the NDAA implemented DoD 1332.38 as the current governing regulation. I agree that this case provided justice and should stand as an example to "stay the course" in the face of apparent injustice.
No problem, I understand your concern.
-SMSgt
-SMSgt
Interesting readings. According to Gant v. US, the plaintiff's biggest issue was jurisdiction, right? If he pursued his rights improperly jurisdictionalky, where should he have gone instead?