DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No: 5506-00
13 June 2001
Dear elie
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 24 May 2001. 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.
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.
The Board found that on 22 January 1998, the Physical Evaluation Board made a preliminary
finding that you were fit for duty. On 12 February 1998, you requested that the PEB
reconsider the finding of fitness, and submitted extensive documentation in support of that
request. On 24 April 1998, the PEB determined that you were unfit for duty because of
residuals of a right ankle injury, rated at 10% under Department of Veterans Affairs (VA)
code 5271; bilateral carpal tunnel syndrome, rated under VA code 5299-8515, at 10%, right,
and 0%, left; a ventral hernia, rated at 0% under VA code 7339; and obstructive sleep
apnea, rated at 0% under VA code 6847. Raynaud’s phenomenon of your right third digit
was listed as a category II condition, as contributing to an unfitting condition, but not
warranting a separate rating. Five additional conditions were placed in category III, as
conditions which were not separately unfitting, and did not contribute to an unfitting
condition. On 8 May 1998, you accepted those findings contingent upon your being retained
on active duty until the birth of your child, which was expected during August 1998. Your
condition was accepted and you were retained on active duty until 30 September 1998, when
you were discharged with entitlement to disability severance pay.
The Board rejected your unsubstantiated contention to the effect that the determinations of the
PEB were based on misleading and inaccurate information which prevented it from making
"a correct, intelligent determination" on your disability rating. It appeared to the Board that
you were accorded a full and fair review by the PEB, that your position was well articulated
and presented to the PEB, and that your rights and interests were not compromised at any
point during the disability evaluation process.
The fact that the VA awarded you a combined disability rating of 80% was not considered
probative of the existence of error or injustice in your case. In this regard, the Board noted
that the VA Schedule for Rating Disabilities has been modified by DOD Directive 1332.39 of
14 November 1996, Application of the Veterans Administration Schedule for Rating
Disabilities, and SECNAVINST 1850.4D. In addition, the VA rates all conditions it
classifies as “service connected", without regard to the issue of fitness for military service,
and ratings may be raised or lowered throughout a veteran’s life time as the degree of
severity of the rated conditions changes. The military departments are permitted to rate only
those conditions which render a service member unfit for duty, or which contribute to an
unfitting condition and warrant a separate rating. Disability ratings are fixed as of the date
of separation or permanent retirement.
The Board noted that the VA is required to assign a rating of 50% for sleep apnea when use
of a continuous positive air pressure (CPAP) device is used. That rating is assigned without
regard to the actual degree of impairment caused by the sleep apnea. The VA awarded you a
50% rating, while classifying your condition as "mild". Although the use of a CPAP device
often renders a service member unfit for duty, as apparently occurred in your case, ratings
for sleep apnea are based on the degree of impairment caused by the sleep apnea,. The
minimum rating for use of the CPAP device does not apply to the military. The PEB
assigned a 0% rating in your case because the sleep apnea was mild, and productive of no
more than minimal industrial impairment. With regard to your lower extremity condition,
the Board noted that the VA awarded you a 30% rating for ankylosis of the ankle joint, even
though the joint retains significant useful range of motion. The military departments are
prohibited from assigning a rating for ankylosis unless there is complete bony fixation of the
joint, or a limitation of motion so severe in degree that the amount of movement is
negligible. Concerning your mild carpal tunnel syndrome, the Board was not persuaded that
you were entitled to a rating in excess of 0% for your left arm at the time of your discharge
from the Navy. The remaining conditions which were rated by the VA, but not the PEB,
were productive of no significant industrial impairment, if any at all, and were not
considered unfitting or ratable by the Department of the Navy.
In view of the foregoing, 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
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