DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORD
S
2 NAVY ANNE
X
WASHlNGTON DC
20370-5100
JRE
Docket No: 3498-00
15 August 2001
From: Chairman, Board for Correction of Naval Records
To:
Secretary of the Navy
Ref:
Encl:
REVIEW OF NAVAL RECORD
(a) 10 U.S.C. 1552
(1) DD Form 149 w/attachments
(2) Dir, NCPB ltr 5420 Ser: 01-14
(3) 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 he was retired by reason of physical disability.
2. The Board, consisting of Ms. Wiley and Messrs. Kastner and
Petitioner’s allegations of error and injustice on 19 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.
Mazza, reviewed
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 evaluated by a medical board on 27 April 1999 and given a diagnosis
The medical board report and an addendum thereto indicate that the
of nasal papillomatosis.
condition is chronic, and that Petitioner had undergone surgery on four different occasions to
remove polyps from his nasal passages, soft palate and (on once occasion) the larynx, and he
was on limited duty for approximately one year. On 9 September 1999, the Physical
Evaluation Board rated his condition at 10% under VA code 6280-6599-6510, by analogy to
sinusitis. He rejected those findings and demanded a hearing, but later changed his mind and
accepted the findings. He was discharged with entitlement to disability severance pay on 30
November 1999. Effective 1 December 1999, the Department of Veterans Affairs (VA)
McF..., dated 4 October 1999, which indicates that
rated his condition at 50% by analogy to sinusitis. It appears that the rating was based in
large part on the statement of Dr.
Petitioner was suffering from headaches, facial pain, nasal obstruction, recurrent nose-bleeds,
and crusting, as well as experiencing foul odors and frequent drainage and debris from the
right side of his nose.
respiratory papillomatosis which involved the nasal floor, septum and lateral wall, as well as
the nasopharyngeal surface of the soft palate. He noted that Petitioner had been treated for
sinusitis “a few times per-i-operatively ”,and was expected to have repeated sinus infections.
In the physician ’s opinion, Petitioner had extensive recurrent
d.
In correspondence attached as enclosure
(2), the Director, Naval Council of
Personnel Boards advised the Board, in effect, that there is no direct VA code for
Petitioner’s condition, this requiring rating by analogy to another listed condition. The code
employed by the PEB in this case accurately reflected the degree of industrial impairment
suffered by Petitioner as a result of his condition while on active duty. He noted that there
were other rating options, such as that chosen by the VA. The VA rating decision, however,
was based on subjective symptoms that, for the most part, were not of sufficient clinical
significance as to warrant note in Petitioner ’s active duty health record or medical boards.
The rating decision analogized Petitioner ’s condition to the far more clinically serious
sinusitis complicated by osteomyelitis. Another possible rating could be by analogy to
allergic rhinitis at 30%. This is a distinctly different and more impairing clinical entity. The
combination of allergic rhinitis and polyps, if sufficiently impairing to result in a PEB
finding of unfitness, could be an understandable consideration in Petitioner ’s case. This case
presents a complicated situation. A careful comparison of his health record with the criteria
for referral to the PEB and the specific wording of the VA codes still favors the PEB
finding, but it remains a judgment call since the rating is by analogy. The Director
recommended that no modification of Petitioner ’s record be made.
CONCLUSION:
Upon review and consideration of all the evidence of record and notwithstanding the
comments contained in enclosure
Petitioner’s condition as described by Dr.
severe prior to his discharge than indicated by the 10% rating he was assigned by the PEB.
Accordingly, the Board concludes that it would be in the interest of justice to rate the
condition at 30% by analogy to allergic rhinitis, and to place his name on the Temporary
Disability Retired List.
(2), the Board concludes that Petitioner although
. on 9 October 1999, was significantly more
McF..
In view of the foregoing, the Board finds the existence of an injustice warranting the
following corrective action.
2
.
RECOMMENDATION:
a.
That Petitioner ’s naval record be corrected to show that he was not discharged by
reason of physical disability on 30 November 1999.
b. That Petitioner ’s naval record be further corrected to show that on he was released
from active duty on 30 November 1999, and transferred to the Temporary Disability Retired
List the following day, pursuant to 10 U.S. Code 1202, with a disability rating of 30% under
VA code 6599-6522.
C.
Current address:
sical examination as soon as practicable.
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
the foregoing is a true and complete record of the Board
matter.
’s review and deliberations, and that
’s proceedings in the above entitled
ROBERT D. ZSALMAN
Recorder
AMES R. EXNICIOS
5. The foregoing report of the Board is submitted for your review an&action.
Reviewed and approved:
wwOV 2 8 2001
JQSEPHG.LYNCH
Assistant General Counsef
(Manpower And Reserve Affairs)
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