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DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC

 

20370-5100

JRE
Docket No: 124-97
15 August 2001

From: Chairman, Board for Correction of Naval Records
To:

Secretary of the Navy

Subj:

FORMER
REVIEW OF NAVAL RECORD

Refi (a)

10 U.S.C. 1552

Encl:

(1)
(2)
(3)
(4)

DD Form 149 w/attachments
Dir, NCPB ltr 5420 Ser: 01-11, 23 Mar 01
Hearing Panel rationale, 7 Apr 00
Subject’s naval record

1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner,
filed enclosure (1) with this Board requesting, in effect, that his naval record be corrected to
show that when transferred to the Temporary Disability Retired List on 1 May 1995, he
received a 50% rating for his back and related conditions, to be combined with the 40%
rating he actually received for rheumatoid arthritis and fibromyalgia. In addition, he requests
certain administrative corrections of his DD Form 214.

2. The Board, consisting of Ms. Davies and Messrs. Hogue and Pfeiffer, reviewed
Petitioner’s allegations of error and injustice on 26 July 2001 and, pursuant to its regulations,
determined that the corrective action indicated below should be taken on the available
evidence of record. Documentary material considered by the Board consisted of the
enclosures, naval records, and applicable statutes, regulations and policies.

3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations
of error and injustice finds as follows:

a. Before applying to this Board, Petitioner exhausted all administrative remedies

available under existing law and regulations within the Department of the Navy.

b. Enclosure (1) was filed in a timely manner.

C. Petitioner was released from active duty on 1 May 1995, and transferred to the

TDRL with a 40% disability rating under Department of Veterans Affairs (VA) Schedule for
Rating Disabilities code 5002 for rheumatoid arthritis and fibromyalgia. He also suffered
from carpal tunnel syndrome, which contributed to the unfitting conditions, but was not
separately ratable, and 

L5-Sl intervertebral radicular pain syndrome, which was not

20%) VA code 7542; 

lo%, VA code 8520 left, and 0% right; and mood disorder due to medical

70%) as follows: fibromyalgia and rheumatoid arthritis,
LA-5 and

separately unfitting and did not contribute to the unfitting conditions. Petitioner underwent
multiple evaluations while on the TDRL, and ultimately, a hearing panel of the Physical
Evaluation Board determined on 12 January 2000, that his disabilities were rated at a
combined (not added) final rating of 
40%, VA code 5099-5025; degenerative disk and joint disease of the lumbar spin e 
L3-4, with transitional sacralized L5, status post multiple surgical procedures, 
code 5292; sensory neurogenic bladder, 
syndrome, 
condition with mixed features, bipolar type, 
10%) VA code 9435. As Petitioner had been
unable to work since his release from active duty because of his disability, the rating was
increased to 100% in accordance with the provisions of SECNAVINST 
1850.4D, paragraph
3804(f), by reason of his unemployability. The findings of the hearing panel were approved,
and he was permanently retired with a disability rating of 100%. The rationale of the
hearing panel, which is attached as enclosure 
(3), indicates, in pertinent part, that at the time
of Petitioner ’s transfer to the TDRL, his back condition should have been considered at least
a category II condition, which contributed to the unfitting conditions. He subsequently
underwent lumbar cage fusion surgery, L3 to 
bladder, as well as unfitting depressive symptoms.

Sl, in April 1998, and developed a neurogenic

L5-Sl radicular pain

20%, VA

d.

In correspondence attached as enclosure 

(2), the Director, Naval Council of

Personnel Boards advised the Board, in effect, that Petitioner ’s lower back pain and left
extremity radiculopathy, symptoms of which significantly interrelated to the fibromyalgia,
should have been placed in category II rather than category III at the time of his placement
on the TDRL. In the Director ’s opinion, the disability rating of 40% was appropriate in
1995; however, the lower back pain progressed significantly while Petitioner was on the
TDRL, to the point where he required a third surgical intervention, which had the
unfortunate residual of a neurogenic bladder. This resulted in an appropriate disability rating
of 100% and his permanent retirement. He recommended that Petitioner ’s record be
corrected accordingly.

f.

In correspondence submitted in response to enclosure 

(2), Petitioner’s counsel

contends, in effect, that Petitioner ’s permanent retirement with a rating of 100% necessarily
required the PEB to 
find that his back condition should have been initially placed in category
I, and assigned a disability rating. He maintains that Petitioner should have received a 50%
rating when initially considered by a formal PEB; therefore, and based on all of the
submissions provided to the Board, he asks that Petitioner
appropriately.

’s disabilities be rated

CONCLUSION:

Upon review and consideration of all the evidence of record and notwithstanding the
comments contained in enclosure 
significant back condition prior to his placement on the TDRL, which was separately

(2), the Board concludes that Petitioner suffered from a

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unfitting and ratable, rather than merely contributing to his unfitting rheumatoid arthritis and
In this regard, it notes from enclosure (3) that the members of the
fibromyalgia conditions.
hearing panel who evaluated Petitioner ’s condition in 2000 and recommended his permanent
retirement with a 100% disability rating, felt that the back condition was  “at least” a
category II condition in 1995, which implies they believe it may have actually been an
unfitting category I condition. They were not required to resolve that issue, however,
because they lacked the authority to make retroactive changes in the ratings assigned in 1995.
It is also notable that the Director, NCPB, indicated in paragraph 2d of enclosure (2) that
“Petitioner’s lower back condition appears to have at least contributed ” to his unfitting
conditions in 1995.

The Board concludes that doubt should be resolved Petitioner ’s favor, and his record
corrected to show that he suffered from an unfitting intervertebral disk condition which was
ratable at 20% when placed on the TDRL. The Board_ was not persuaded that he was
entitled to separate ratings under a neurological code for the nerve root impingement and
resulting leg pain, or for the neurogenic bladder, which developed following surgery he
underwent while on the TDRL.

The requested corrections of Petitioner ’s DD Form 214 are administrative in nature, and do
not require action by the Board. That portion of his request will be referred to the
Commander, Navy Personnel Command, for action.

In view of the foregoing, the Board recommends the following corrective action.

RECOMMENDATION:

a. That Petitioner ’s naval record be corrected to show that when transferred to the
Temporary Disability Retired List on 2 May 1995, he was assigned a disability rating of
20 % under VA code 5293, for intervertebral disk syndrome, 
rating he previously received under VA code 
fibromyalgia.

5002 for rheumatoid arthritis and

LA-S 1, in addition to the 40%

d. That a copy of this Report of Proceedings be filed in Petitioner ’s naval record.

.
4.
It is certified that a quorum was present at the Board ’s review and deliberations, and that
the foregoing is a true and complete record of the Board ’s proceedings in the above entitled
matter.

ROBERT D. ZSALMAN
Recorder

JAMES R. EXNICIOS
Acting Recorder

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5. The foregoing report of the Board is submitted for your review and action.

Reviewed and approved:

JOSEPH G.
Assistant General Counsel

LWCH

 

(Mar,per  And Reserve

 

kifam)