Released 1/28/25 | Tags:
Dechert and NVLSP Appeal Denial of Medical Retirement to Fourth Circuit
FOR IMMEDIATE RELEASE: January 28, 2025
ARLINGTON, VA -- On January 2, 2025, Dechert LLP and the National Veterans Legal Services Program (NVLSP) filed a brief in the U.S. Court of Appeals for the Fourth Circuit in Thompson v. Austin, appealing the denial of medical retirement to Ms. Carissa Thompson.
Ms. Thompson served honorably in the United States Air Force as a Signals Intelligence Analyst from November 25, 2002 to May 23, 2005. On July 31, 2003, Ms. Thompson suffered a serious back injury. While riding as a passenger in a two-person all-terrain vehicle, Ms. Thompson was thrown from the vehicle, which rolled over on her, resulting in a burst fracture of her vertebra. Ms. Thompson was hospitalized for weeks, placed in a brace, and prescribed narcotics for severe back pain. Despite her debilitating injuries, she returned to limited military duty, continuing to serve for nearly two years under excruciating pain and other debilitating physical limitations. After undergoing numerous treatments, it became clear that her injury permanently prevented her from performing her duties. Consequently, she was medically separated from the military with a rating of only 10% disabling for her back condition, below the 30% threshold for medical retirement. The VA rated the same condition at 40% disabling, effective back to her date of discharge, underscoring the severity of her impairment and the military’s rating error.
Had Ms. Thompson been medically retired, she would have been entitled to monthly retirement payments and military medical care (“Tricare”) for herself, her spouse and her dependent children. Ms. Thompson appealed the denial of medical retirement to the Physical Disability Board of Review. Her application for medical retirement was denied by the Board, and this denial was affirmed by the U.S. District Court for the District of Maryland.
The appellate brief filed by Dechert and NVLSP argues that the Board improperly relied on examinations that failed to follow applicable law, including failing to consider functional loss due to pain. It further asserts that the Board failed to give “particular consideration” to the VA rating within a year of discharge as required by Department of Defense regulations.
“Ms. Thompson honorably served her country until she was discharged because of her disability,” said Dechert Associate Michael Losco. “The Board cherry-picked evidence in order to reach the conclusion that she was not eligible for a medical retirement.”
“It is a privilege to represent Ms. Thompson in pursuing the benefits she should have received,” Losco continued. “We are asking the Fourth Circuit to recognize the District Court’s error and to remand Ms. Thompson’s case for proper consideration of her disability rating.”
"Congress created the Physical Disability Board of Review because the military failed to properly rate conditions during the time of Ms. Thompson’s service. The court’s decision disregards the mandate for the Department of Defense to correct these errors, undermining the purpose of the Board and the rights of disabled veterans like Ms. Thompson,” stated NVLSP Senior Managing Attorney Esther Leibfarth.
The Dechert team included Partner Steven Engel (DC); Associates Michael Losco (NYC), Chris Merken (PHL), and Biaunca Morris (NYC); and Paralegals Anna Aviles-Alfaro (DC) and Rebecca Haneiko (PHL).
The NVLSP team includes Director of Lawyers Serving Warriors® Pro Bono Program Rochelle Bobroff, Senior Managing Attorney Esther Leibfarth, and Staff Attorney Matthew Handley.
Orrick filed an amicus brief on behalf of Military-Veterans Advocacy Inc. detailing the legislative history leading to the creation of the Physical Disability Board of Review.
About Dechert
Dechert is a global law firm that advises asset managers, financial institutions and corporations on issues critical to managing their business and their capital – from high-stakes litigation to complex transactions and regulatory matters. We answer questions that seem unsolvable, develop deal structures that are new to the market and protect clients’ rights in extreme situations. Our nearly 1,000 lawyers across 19 offices globally focus on the financial services, private equity, private credit, real estate, life sciences and technology sectors.
About The National Veterans Legal Services Program (NVLSP)
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 18 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 $5.6 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.
Media contact:
Patty Briotta, Direct: 202 621 5698, patty@nvlsp.org