Background
Former Marine Benjamin Wayne Latham sued under 10 U.S.C. § 1201 seeking military disability retirement benefits. He sought a separate rating for traumatic brain injury (TBI), apart from his post-traumatic stress disorder (PTSD) rating, and ratings for an eye disorder, fibromyalgia, and plantar fasciitis.
During the Integrated Disability Evaluation System process in 2014, the VA assigned Latham a 70% PTSD rating, a 30% headache rating, and a 0% TBI rating because the TBI symptoms overlapped with PTSD. The informal Physical Evaluation Board adopted those ratings and placed him on the Temporary Disability Retired List; he was discharged in January 2015. The VA later granted benefits for some conditions, while Latham unsuccessfully sought correction of his TBI rating through the Board for Correction of Naval Records.
The Court’s Holding
Judge Somers granted the government’s Rule 12(b)(1) motion and dismissed the case for lack of subject-matter jurisdiction. The TBI claim accrued at Latham’s 2015 discharge, when the informal Physical Evaluation Board considered the condition through the VA rating adopted in the disability process. His later correction-board petitions did not restart the six-year limitations period. His 2025 suit was therefore untimely.
The court reached the same conclusion for the eye-disorder claim. The VA had found the condition not service-connected during the 2014 process, and the informal Physical Evaluation Board’s adoption of that determination triggered the limitations period at discharge. Latham did not adequately establish accrual suspension or legal disability tolling. His fibromyalgia and plantar-fasciitis claims, by contrast, were unripe because no authorized military board had considered them in the first instance.
Key Takeaways
- An informal Physical Evaluation Board’s disability determination can trigger the Tucker Act’s six-year limitations period upon discharge.
- A later petition to a military corrections board does not restart the limitations period when a competent board already considered the disability claim.
- Military disability claims not considered by a Physical Evaluation Board or correction board are unripe in the Court of Federal Claims.
Why It Matters
The decision distinguishes between claims that were decided too long ago and claims that have not yet received the required administrative consideration. Former service members challenging disability retirement determinations must timely pursue judicial relief after the first competent military-board decision, while presenting unaddressed disability conditions to the appropriate military board before seeking Court of Federal Claims review.