DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

JRE
Docket No: 
15 March 1999

105-97

This is in reference to your application for correction of your naval record pursuant to the
provisions of title 10 of the United States Code, section 1552.

A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, considered your application on 11 March 1999. Your allegations of error and
injustice were reviewed in accordance with administrative regulations and procedures
applicable to the proceedings of this Board. Documentary material considered by the Board
consisted of your application, together with all material submitted in support thereof, your
naval record and applicable statutes, regulations and policies. In addition, the Board
considered the advisory opinion furnished by the Director, Naval Council of Personnel
Boards dated 8 December 1998, a copy of which is attached.

After careful and conscientious consideration of the entire record, the Board found that the
evidence submitted was insufficient to establish the existence of probable material error or
injustice. In this connection, the Board concurred with the comments contained in the
advisory opinion to the effect that there is no requirement that category II conditions be rated
by the Naval Disability Evaluation System. In addition, it was unable to conclude that any
of the diagnoses 3-6 listed in the enclosed findings of the Physical Evaluation Board 
(PEB)
dated 14 December 1993, should have been classified as category I or II conditions, or that
In this regard, it substantially concurred
you were entitled to a total rating in excess of 20%.
with the enclosed rationale of the hearing panel of the PEB which considered your case on 17
November 1993. Accordingly, your application has been denied. The names and votes of
the members of the panel will be furnished upon request.

It is regretted that the circumstances of your case are such that favorable action cannot be
taken. You are entitled to have the Board reconsider its decision upon submission of new
and material evidence or other matter not previously considered by the Board. In this
regard, it is important to keep in mind that a presumption of regularity attaches to all official

records. Consequently, when applying for a correction of an official naval record, the
burden is on the applicant to demonstrate the existence of probable material error or
injustice.

Sincerely,

W. DEAN PFEIFFER
Executive Director

Enclosure

IN 

REPLY  

REFER 

TO

5420
Ser:98-047
8 

Dee 98

From:
To:

Subj:

Ref:

Encl:

Director, Naval Council of Personnel Boards
Chairman, Board for Correction of Naval Records

FORMER

(a)
(b)

SECNAVINST 
DOD Directive 1332.18 dated 25 Feb 1986

1850.4C

(1) BCNR ltr JRE DN: 108-97 of 3 Nov 97
(2) NCPB Legal Opinion dtd 8  

Dee 98

The Petitioner's  

cw history and medical records, enclosure

1.
(l), have been reviewed in accordance with reference (a) and are
returned.
warrants no change to the Physical Evaluation Board (PEB) find-
ings for a 20% rating with entitlement to disability severance
A detailed discussion of our analysis is outlined below.
pay.

We have determined that the Petitioner's request

The Petitioner, in essence,

2.
increased rating, retrospectively for:

requests de novo ratings or an

a.

A left knee injury.

b.

Several conditions listed under Category II that are not

separately unfitting  

bytthe PEB review of 17 November 1993.

In reference to Petitioner's left knee injury, his knee

3.
condition reportedly worsened, therefore,
retrospective alteration in his PEB finding.
Cruciate Ligament repair was properly rated; even the DVA
concurred.

The Anterior

this does not justify a

Regarding the Category II conditions in the PEB findings, the

4.
MEB addenda opined that several other medical conditions were
contributing to Petitioner's unfitness.
rated by the DVA, though only two, viz., Sinusitis and his
>O%.
Gastrointestinal (GI) complaints,
is no precedent that would require the rating of Category II
conditions; else, there would be little logic to maintaining that
category.
reference (a), is, unfortunately ambiguously worded so as to

It is true that paragraph 2103, Enclosure  

All were subsequently

received ratings of  

(2), to

There

Subj:

AND RECOMMENDATION

CASE OF FORMER

allow the inference of a possibility that a Category II condition
might qualify for an individual VASRD rating.
most liberal interpretation of the DEM, internally, somewhat
contradictory language would stop short of mandating separate
ratability for  
never the intent, nor has it,
the overwhelming majority of qualifying Category II conditions
would, simply, be "elevated" to Category I  
word "ratable" in paragraph 2103a merely allows for the
possibility that a contributory condition might be ratable.

u Category II conditions; and, indeed, that was
in practice been utilized, since,

Use of the

btatus.

However, even the

5.

All that said, a detailed reading of the records reveals:

a.

The first "addendum"

is a statement from the Internal

Medicine Department, Naval Hospital, Roosevelt Roads, summarizing
the history of Petitioner's GI and Entomology (ENT) conditions.
It states that Petitioner was
{due to his maxillary sinusitis} but stops short of indicating
that his condition was either unresponsive to prescribed agents
or, otherwise, significantly impaired his ability to perform the
duties required to be considered 'fit.'

"advised to give up scuba diving"

b.

The second "addendum", dated 17 November 1993, actually

originates with the Orthopedic Department and indicates, in
essence, that Petitioner's GI intolerance of Voltaren was
complicating the management of his
Hence, an
already reflected in his rating for the latter.
additional rating for the GI condition would run the risk of
pyramiding.

‘knee condition"--an influence

Enclosure (2) responds to your comment on the variance in
6.
language between reference (a) and that contained in paragraph
D.5.c. of reference (b).

In summary, the Petitioner's records and documentation

7.
support the conclusion that he was properly awarded a disability
rating of 20 percent for his left knee condition at time of
discharge and therefore I recommend his petition be denied.

NCPB LEGAL OPINION

SUBJ:

BCNR ISSUES ICO

8 

Dee 98

Address Petitioner's contentions concerning his entitlement

1.
to disability rating for his conditions and particularly his
contention that the PEB is required to rate all conditions which
contribute to an unfitting condition.

The language in paragraph 2103 of SECNAVINST  

2.
equivocal, and at variance with that contained in paragraph
D.5.c. of 

DOD Directive 1332.18 dated February 25, 1986.

1850.4C is

The arguments raised in the Petitioner's BCNR request, noted

LEGAL COMMENTS:
1.
above, seem to support his contention on the surface, but I think
frondsl' situation
they point out a classic
in regulatory law.
You may carefully
doesn't necessarily mean that's the case.
reach between the fronds of a tropical plant to pick a pretty
flower, but sometimes you get impaled upon a stiletto
unintentionally camouflaged therein.

What you read may seem plain to you, but it

"stiletto amongst the  

SECNAVINST 

1850.4C of 8 Mar 90 (DEM), and DOD Directive

2.
1332.18 of 25 Feb 86 (DIR) provide controlling policy in this
case.
because the DEM is largely old wine in a new bottle.

Dee 87 (OLD DEM) cannot be ignored

1850.4B of 7 

SECNAVINST 

The 

DOD Directive was included as Appendix C of the OLD DEM.

3.
Paragraph 2103 of the DEM is basically the successor paragraph,
in relevant part, to paragraph 0212 of the OLD DEM.
determine whether paragraph  
DEM paragraph 2103 and OLD DEM paragraph 0212, we have to look
beyond the plain language to discern the intern of the
controlling policy, which is the 

In order to
D.4.c) is at variance with

DOD Directive.

D.5.c 

(not 

DOD Directive paragraph  

the (Navy Department) will not rate those

D.5.c. directs that in making its

4.
professional judgment,
neither unfitting for military service  
disabilities
contributing to the inability to perform military duty.
paragraph 
same DIR underpins both the DEM and the OLD DEM), but adds some
administrative clarification to assist other interested offices
in the Navy Department (such as BCNR) and the Veterans
Administration (now the Department of Veterans Administration).

0212~ references the basic guidance of

the DIR (the

nor

OLD DEM

ENCLOSURE (2)

SUBJ:

BCNR ISSUES  

ICO,

,

.

D.5.c provide, in essence, that if a physical

0212c, and 

DOD

DEM paragraph 2103, OLD DEM paragraph  

5.
Directive paragraph  
impairment is ratable as the unfitting condition, all other
physical impairments that are unfitting or contribute to the
finding of unfitness must be given an appropriate rating.
PEB records' diagnoses forwarded to it by Medical Evaluation
Boards, and distinguish between their applicability to the
ratings process by reporting the findings in four distinct
categories 

(see DEM paragraph 5011).

The

In the instant case, the Category III findings had no impact

6.
upon the Petitioner's disability rating, but may, at some later
date, be considered by the Department of Veterans Affairs during
their ratings deliberation process.

Finally, all parties appear to be protected when the medical

7.
record records all known diagnoses at the time of separation or
The Petitioner is protected from the military
retirement.
denying knowledge or existence thereof, and the military is
protected, in part, from diagnoses that could have been known, or
should have been known, but for one reason or another, were not
recorded in the Petitioner's medical records.

LEGAL CONCLUSIONS:

The legal arguments do not support the relief sought by the
Petitioner.

This is purely a medical issues' case.

ENCLOSURE (2)

DEC--29-93

WED

L

p
..’ 

. 

“’

: 
,.*’

.\

lP‘S1OMSG

ROOSEVELTRDS P R

P

1.84

1c 

.’ .

 

*

. .

*@ 

.. 

7 ‘. 

.. 

: 

: 

., 

; 

:,

*, 

‘.. 
I
I

THIS 33  
MEMBER  
NAVAL 
THE FOLLOWING DIAGNOSES;

BEFORE A MEDICAL
HOSPIT& ROOSEVELT ROADS, PUERTO RICO ON 

APPEARED 

YEAR OLD  

 

13 MAY 

BOARD A T 

THE
1993 WITH

ARTWROFIBROSIS,  LEFT KNEE, 
(1) 
(2) DEGENERATIVE ARTHRITIS,  LEFT KNEE, 7159
RIGHT SUPRASCAPULAR NERVE ENTRAPMENT, 
(3) 
(4) 
' IRRITABLE BOWEL SYNDROME, 5641
REFLUX, 5301
(5). GASTROESOPXAGEAL 
(6! CHRONIC SINUSITIS, 4739

7185

g559

:

d

HAGEL,

. . . . . .
.;
,. . .
-

WSTH COLONEL R. N. ROMAN,  USMC, AS 

J. MCDEVITT, 

USNR, AND CAPTAIN D. M. 

;\TH LIEUTENANT M.
LEBORGNE 

EVALUATE1 THIS CASE,
WITa A DISABILITY
THE MEMBER 
DISAGREED

THE MEMBER'S LEGAL COUNSEL 
P";~oM~%"E"~AR"A"L"I"Z)GD  

(T BETHESDA,
PRESIDfiNG OFFICER,
GRODIN, MC,
UAS LAWRENCE
USNR, AS 
co-
~vETERANS 
0~

206 UNDER V.A. CODE 5257-5003.
FINDINQS, AND DEMANDED A FORMAL HEARING.
17 NOVEMBER 1993 

TBE RECORD REVIEW PANEL 
ON 03 AUGUST 1993,
AND FOUND THE  MEMBER TO  BE UNFIT FOR DUTY 
RATING OF 
WITH THESE 
THE HEARING   WA3 CONDUCTED ON 
MARYLAND, 
COMMANDER C. 
USN, AS PANEL MEMBERS,
CB~NSEL
LEON 
AMERICA*ASSIST~D  COUNSEL.
THE MEMBER APPEARED  AT 
EEARING PETITIONING TO BE FOUND
THE FORMAL 
DISABILITP RATING OF 
QO$'UNDFR V.A. CODE
UNFIT FOR DUTY WITH A 
302 
7319, 
V.A. 
UiDER V.A. CODE 7346, 
302 UNDER 
COOE 6513, 201
V.A. CODE 8513, AND 
!5257*5003, FOR A
UNDER 
V.A. CODE 
TOTAL  RATING 
TXE 
TEMPoRAB~ 
0~ 
DLBABrLITY
so#, A ND 
CAbE 
RETIREMENT 
AVAILABLE TO THE PANEL  WERE THE 
F,ILB,
EVZDENCE
HEALTH: 
RECOR,D> 
HEALTH RECORD ENTRIES AND A LETTER  FROM LCDR
WEtiE’  
WIESE, A MEDICAL BOARD MEMBER;  
12 PAGE  SUMMARY
C:
PREPARED BY 
ADDENDUM TO THE MEDICAL BOARD DATED  17 NOVEMBER 1993, THE DATE OF
TI$ BEARING,
AFTER 
EvALuATYoN BOARD 
U.S. NAVY 
WHICH INTERFERES WITH  
DU.TZES.
CONDITION8
DEGENERATIVE  ARTHRITIS LEFT 
SUPRASCAPULAR NERVE ENTRAPMENT, 3559, 
5641, 

CAREFUL EVALUATION   OF ALL AVA ILABLE EVI DENCE, 
!TBE PHYSICAL
~DUTY IN THE
FOR 
ASSIG,NABILITY AND
TIIE ADEQUATE PERFORMANCE  
;OF MILITARY
TjiE FOLLOWING
THE RECORD DOCUMENTS THAT THE MEMBER  HAS 
,KNEE,
ARTHROFIBROSXS LEFT 
7185,
KNEE, 7159; CATEGORY 
kI1;
RIGRT
BOWP;L SYNDROME,

205 UNDER 
PLACEMENT 
&,ND SERVICE 'RECORD BOOK.

UNFIT 
BsCAU3E OF A CONDITION WHICH LIMITS 

TBE ME MBER To  

FINDS 

GASTROESOPHAGEAL REFLUX, 5301, CHRONIC 

TBE PARALYZED VETERANS  OF AMERICA;

ADHSTTED- INTO 
13,

A 

OF 

+T.
- EXHIBIT A:

XRRITABLE 

SINUSITTS, 4739.

EXBIEIT 

!

EXEIIBIT 

BE 

- CATEGORY It

1

ENCLOSUREI 

(1)

DEC--29-93

WED

12”52

OMSG

ROOSEVELTRDS P R

P

85- 

,. 

. .
;

. 
i

.:

,’ 

:

.

_.

I 
.,:: 
i

qt 
,.

. . 

‘.’
‘( 

I

t 

4

I
..!’i .

 

“‘

AT 

ARTHRO3CoPY  

,,,.: 

,.,,,

WHICH HE 

-

A DISABILITY RATING-

>- REVEALED FIBROTIC 

i?IS LEFT KNEE  

XN 1982.

1997 PERTAINED TO HIS 

COMPLAINTS OF 2   YEARS 

FINDINGS 
SUPRAPATELLAR  POUCH, GRADE'IV 

PATELLOFktiORAL  JOINT, GRADE IV CHONDROMALACIA OF HIS 

HE WAS TRANSFERRED TO THE NIGHT SHIFT  FOR MAXIMUM 
VA9 ABLE TO DO ON THE  NIGHT 

RECURRENTiEP130DES  OF
THB MEMBER  TWISTED 
GIVING WAY LED TO ARTHROSCOPY FOLLOWED BY ACL RECONSTRUCTION WITH
TWO PREVIOUS MEDICAL BOARDS DATED 27
PATELLAR TENDON AUTOGRAFT.
1990 AND 22 JANUARY 
CONVAL+SCENCE FROM
JUNE 
HE WAS FOUND FIT
THE ANTERIOR CRUCIATE LIGAMENT RECONSTRUCTION.
FOR FULL DUTY AFTER 7 MONTHS OF REHABILITATION.
HOWEVERt IN
OF
NOVEMBER 1992 NE PRESENTED WITH
IN JANUARY  1993 HE  UNDERWENT
PROGRESSXVE  LEFT KNEE PAIN,
ARTHROSCOPIC 
LTSIS OF ADHESIONS,
CHONDkOMALAkIA OF
SIs 
MEDIAL
HE HAD A
JOINT COMPARTMENT, AND A PARTIAL MEDIAL MENISCUS  TEAR.
THESE WERE ALL THOROUGHLY
CYCLOPS LESION 
855 ACL GRAFT,
PXNCHINO  
DEBRIDED,
POST-OPERATIVELY HE  
COMPLXED WITH AN INTENSIVE
RANGE OF MOTION WAS  5 TO 125 DEGREES.
REHABILITATIdN PROGRAM,
HE WAS NOT 
AtiLE TO RETURN TO RECREATIONAL SPORTS  SUCH AS KARATE,
HE CONTINUED   TO HAVE   WEATHER  ACH E
WATER SKIING AND RACKETBALL.
AND PAIN  DURING THE LAST 2 TO  3 HOURS OF HIS SHIFT AS 
A WARD
REST.
ETURSE,
THE MEMBER DESCRIBED THE NEED TO ELEVATE HIS LEG TO REDUCE 
SHIFT
SWELLING IN THE KNEE, 
HE WEARS A KNEE BRACE AS
BECAUSE OF THE LIGHTER WORK DEMANDS.
NEEDED WHEN EXERCISING,  AND TAKES VOLTAREN,
THE% CASE OF LT
FOR THE DEGENERATIVE ARTHROFIBROTIC CHANGES IN  
18 GIVEN THE
OLIVER FALLS BETWEEN 
205,: IS ASSIGNED
BENEFIT OF  THE DOUBT,
UNDER 
MANY
THE MEMBER HAS BEEN A WEIGHT LIFTER IN PHYSICAL TRAINING 
FOR 
YEARS.
IN JANUARY 
A'HISTORY OF 
WEEKS
WOdSE BY BENCH
OF 
PRESSING AND'PUSHUPS.
BLOCK.OF
THE RIGHT 
SUPRABCAPULAR NERVE LOCALIZED TO THE NOTCH AREA WITHOUT
:AlCONk 
. HE DID NOT
REiJPbNSE TO NON-STEROXDAL ANTI-INFLAMMATORY MEDICATIONS, AND WAS
TREATED WITH STEROID INJECTIONS.
TO RESUME WEIGHT LIFTING,
INDICATES THAT  HE RECEIVED 3 MONTH3 OF. RELIEF
INJECTION, BUT SYMPTOMS RETURNED.
HIS ACTIVITY FOR 2  WEEKS BEFORE RESUMING
THE MEMBER COMPLAINS OF PAIN IN THE 
RIGAT
ACTIVITIES.
LIMITATION IN
CONTINUES  TO PURSUE BENCH PRESSING AND
LESS WEIGHT WXTH HIS RIGHT  ARM AND SHOULDER
PREVIOUSLY.
AND IN 
CONSIDERZNG HIS ONGOING XNVOLVEMENT IN PERSONAL WEIGHT
LIFTING PROGRAM, THE CONDITION IS NOT CONSIDERED TO BE UNFITTING
FOR DUTY.
THE MEMBER HA3 HAD A  SYMPTOMATIC HIATAL HERNIA  FO
YEARS.
DISTRESS,
WITH EXACERBATIONS 2 TO 3 TIMES MONTHLY!
ANTACIDS AND 

THE PAST 8
REFLUX ESOPHAGITIS AN EPIGASTRIC
HE TAKES
ON

HE SLEEP3 PROPPED  

EMG REVEALED A PARTIAL 
8OMti 

StiPRA'6PINATUS ATROPHY

105 AND 
AND TRE HIGHER RATING, 

THE MEMBER 

20%.

RIGRT POSTERIOR 8UPERIOR SHOULDER PAIN MADE 

IT 

IS CONSIDERED TO BE A  CATEGORY III CONDITION.

IN CONSIDERING 

HI3 DUTIES AS A NURSE 

ZANTAC ON A REGULAR BASIS.

HE SEEKS ATTENTION FOR 

A HEALTH RECORD ENTRY

199& 

THE MEMBER BAD 

V.A. CODE 52574003.

k TO 8 

CONDUCTiON 

THHRH 

Is 

~0 

CbRP$ OFFICER 

i

I
“b

UF 

r'
.'. 

2.

LOiMi'iNii 

Wgfri' 

DEC--29-9

“.

;..,.: 
,.‘. 

T, 

\

’

,. 

3WED 

17’53OMS G

ROOSEVEL”

RDS, P

i

&a

‘.

! 

63 I
!

R P 

m.86

. 

,.

REFLUX,

Tn 

4-YEARS,

/
I-
,, - 

,.,

THE 

HIATAL HERNIA,

G.I. COCKTAIL.

ON 

AND ZYLOCAINE JELLY.

HE REPORTS THAT HE IS 

THOUGH A LONGSTANDING 

HE FINDS IT NECESSARY ON 

MEMBER HAS IRRITABLE BOWEL SYNDROME  

THE VOLTAREN WHICH  HE TAKES FOR HIS 

PILLOUS, AND WHEN BENCH PRESSING WEIGHTS AT THE GYM,  HE AVOIDS
OCCABION
LYING FLAT TO REDUCE 
"G.I. COCKTAIL" OF
TO PRESENT IN  THE EMERGENCY  ROOM FOR A 
DONNATAL, MYLANTA,
THIS USUALLY PROVIDES
ONEi OCCASION  HE
RELIEF, AND HE RETURNS TO   WORK ON THE WARD.
NE STATED THAT
DID NOT RETURN TO WORK FOLLOWING A 
HE HAS TRIED  TO CUT DOWN ON COFFEE AND ALCOHOL PER  
IEDICAL
SOURCE OF 
ADVICE,
DISTRESS TO THE MEMBER, DOES NOT INTERFERE WITH  THE PERFORMANCE 
UNFITTZNG 
OF DUTIES TO SUCH A DEGREE  THAT IT WOULD  BE CONSIDER D
8
FOR DUTY.
WAICH HE HAS HAD FOR THE
TRE 
PAST  3 
USUEt,LY CONSTIPATED,
AND EXPERIENCES A FEW DAYS OF DIARRHEA AND CRAMP3 APPROXIMATELY 2
HE MAINTAINS A HIGH FIBER DIET, INCLUDING
TO 3 TIMES PER MONTH.
AND TAKE3 FLEETS ENEMAS AS NEEDED FOR
FIBER SUPPLEMENT&
KNNB MAY
CONSTIPATION,
NEGATIVELY AFFECT THE IRRITABLE BOWEL SYNDROME.
HE STATED THAT HE HAS
HE BELIEVES THAT STRESS  IS A CONTRIBUTOR.
HAD TO LEAVE THE WARD WREN HE  
13 NOT CONSIDERED TO BE SUFFICIENTLY INCAPACITATING TO
CONDITION 
SIGNIFICANTLY IMPAIR HIS PERFORMANCE AS A NURSE.
THE MEMBER HAS  RAD CHRONIC SINUSITIS SINCE COLLEGE, AND HAS
HtS LIFE TIME
SUFFERED HEADACHES FOR THIS LONG,
IN 
THE 
REQUYRE NARCOTIC
MEDICATION,
NUMEROUS STANDARD
PREPARATIONS* FOR SINUS INFLAMMATION.
SURGICAL INTERVENTION  FOR
THE MAXILLARY SINUS HAS  NEVER BEEN SUGGESTED.
THE MEMBER STATED
ASi "TAKING OFF
THAT THE  
DOCTOR'S ORDERS".
REVIEW OF THE RECORD DID NOT  INDICATE CURRENT
INCAPACITATIQN FROM THE SINUSITIS OR  THE SINUS HEADACHES, AND THE
CHR,ONIC SINUSITIS IN 
TAB CASE OF LT OLIVER WAS NOT CONSIDERED TO
CONDITION.
THEREFORE, A TOTAL DISABILITY  RATING OF 
V.A. CODE 

THREE TIMES 
BEADACRES HAVE BEEN SUFFICIENTLY SEVERE TO  

THAT-1
'\
HOWEVER, HIS
:
/

READACBES CAN INTERFERE WITH DUTIES  SUCH 

IT I'S DESIGNATED TO BE A  CATEGORY III-

HE HAS BEEN TREATED WITH

20% IS 

ASsIGNED UNDER

5257-5003,

i

HE STATED 

HA8 HAD DIARRHEA.

. .
.

BE UNFITTING 

.,

“FOk ’ DUTY.