DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2
NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No: 6756-99
28 August 2000
From:
To:
Subj:
Ref:
Encl:
Chairman, Board for Correction of Naval Records
Secretary of the Navy
FORMER
REVIEW OF NAVAL RECORD
(9
(1)
(2)
10 U.S.C. 1552
DD Form 149
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 permanently retired by reason of physical disability.
2. The Board, consisting of Mses. Moidel and
Petitioner’s allegations of error and injustice on 17 August 2000 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.
Schnittm-an and Mr. Bartlett, 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 tiled in a timely manner.
C.
Petitioner was released from active duty on 8 July 1994, and transferred to the
(TDRL), with a 30% rating for major depression and
Temporary Disability Retired List
dysthymia. He completed 10 years, 8 months and 19 days active service. He underwent a
periodic physical examination on 4 March 1996. In the opinion of the psychiatrists who
examined him on that date, his condition had improved “somewhat”, but he remained unable
to perform military duty, and his condition was assessed as productive of moderate to severe
interference with social and industrial adaptability. The psychiatrists noted that
“[t]he patient
may benefit from pharmacologic intervention; however, at present, he has declined to do
’ On 30 May 1996, the Record Review Panel (RRP) of the Physical Evaluation Board
30%) less a
$ZB) made recommended findings that Petitioner’s condition was ratable at
20% non-compliance factor, based on his failure to take medication for the condition. On 11
July 1996, Petitioner rejected those findings and demanded a formal hearing. He advised the
RRP that he had stopped taking medication because it had had no effect on his depression;
however, he was “currently looking to start therapy again and maybe start taking Zoloft
again.
counsel, he accepted the findings of the RRP, and withdrew his request for a hearing. On 18
September 1996, the President, PEB, requested that the Commandant of the Marine Corps
discharge Petitioner with entitlement to disability severance pay.
shown in available records.
” On 9 September 1996, after consultation with Judge Advocate General Corps
The date of discharge is not
d. SECNAVINST
1850.4(3, paragraph 2117, provided, in effect, that a compensable
disability rating may be reduced to compensate for aggravation or increase in severity of the
rated condition attributed to unreasonable failure or refusal to submit to medical or surgical
treatment or therapy, when the existence and degree of aggravation or increase in severity
are ascertainable by application of accepted medical principles, and where it is clearly
demonstrated that the member was advised clearly and understandably of the medically
proper course of treatment, therapy, medication or restriction; and the member ’s failure or
refusal was willful or negligent, and not the result of mental disease or of physical inability
to comply.
CONCLUSION:
In this regard, it noted that the psychiatrists
Upon review and consideration of all the evidence of record, the Board was not persuaded
that Petitioner ’s failure to take psychoactive medication clearly aggravated his mental
disorder, or caused it to increase in severity.
who performed his final periodic physical examination indicated that medication
improved his condition. They did not express certainty that medication would have a
beneficial effect, and there is no indication in the available records that validates the
conclusion of the PEB that his condition would have improved with medication by a rating
factor of 20%.
medication may have been related to the effects of his depression, and possibly the result of
mental disease.
In addition, given all of the circumstances of this case, it finds the deduction
of a non-compliance factor premature and unnecessarily draconian, especially given
Petitioner’s statement of 11 July 1996 to the effect that he would consider undergoing
psychiatric and medical therapy.
In addition, the Board believes that Petitioner ’s decision to stop taking
“may” have
In view of the foregoing, the Board recommends the following corrective action.
RECOMMENDATION:
a.
reason
That Petitioner ’s naval record be corrected to show that he was not discharged by
of physical disability.
b. That Petitioner ’s naval record be further corrected to show that he was permanently
retired by reason of physical disability on the date of the discharge set aside subparagraph a.,
above, pursuant to 10 U.S.C. 1201, with a 30% rating under VA code 9209.
c. That a copy of this Report of Proceedings be filed in Petitioner
’s naval record.
4. Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval
Records (32 Code of Federal Regulations, Section 723.6(c)) 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
5. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures
of the Board for correction of Naval Records (32 Code of Federal Regulations, Section
723.6(e)) and having assured compliance with its provisions, it is hereby announced that the
foregoing corrective action, taken under the authority of reference (a), has been approved by
the Board on behalf of the Secretary of the Navy.
NAVY | BCNR | CY2001 | 07711-99
The hearing panel found him unfit for continued naval service, and recommended that he be separated with a 10% rating under VA code 5295. It concludes that the PEB hearing panel gave too much weight to the statement of Dr. , which reflects substantially different In view of the foregoing, the Board finds the existence of an injustice warranting corrective action; however, as Petitioner ’s condition was subject to improvement at the time of his separation from the Navy, permanent retirement...
NAVY | BCNR | CY2002 | 06977-01
” The Board noted that it is the function of an MEB, which is composed entirely of physicians, to report on the state of health of the service member who is the subject of the MEB, and to recommend referral of the member to the PEB in appropriate cases. In reference to the question of why Petitioner's cardiac and pulmonary conditions found not unfitting at the time of his initial PEB adjudication and placement on the TDRL, reference Petitioner's original 14 February 1992 Medical Evaluation...
AF | PDBR | CY2012 | PD2012-00052
After 5 years on the TDRL, the PEB adjudicated a permanent disability rating of 10% for the mental health condition with application of SECNAVINST 1850.4D and the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). In the matter of the mental health condition, the Board, by a vote of 2:1, recommends a 50% disability rating upon entry on TDRL and a permanent disability rating of 10%, coded 9404 IAW VASRD §4.130. Service Treatment Record Exhibit C. Department of Veterans’ Affairs...
AF | PDBR | CY2013 | PD 2013 00150
There were limited MH treatment notes in the records before the Board, but the available records support that the two sets of symptoms waxed and waned together.The CI developed a non-MH condition treated with steroid medications that reportedly caused weight gain and/or inhibited mandatory weight loss to meet Navy physical standards.The Board noted that during the time that the CI wastreated with steroids, she had an exacerbation of depression symptoms leading to an inpatient hospitalization...
NAVY | BCNR | CY2002 | 00799-02
A medical board was prepared in January 1998 and PEB's Record Review Panel In June, 1998, the forwarded to the Physical Evaluation Board (PEB) for consideration. Lumbar Decompression and Low Back Pain Status Post Fusion (72420) The Record Review Panel found the member unfit for duty under VA Code 5295, rated his condition at 10% disability and separation pay. However, Therefore, after careful consideration of all relevant medical evidence, viewed in a .light most favorable to the...
AF | PDBR | CY2009 | PD2009-00650
The service treatment record (STR) included a pre-deployment health assessment that noted the CI was non-deployable pending a dental exam and evaluation by cardiology and mental health for symptoms of chest pain, hyperventilation, and dizziness to rule out cardiac disease and/or anxiety disorder. As described above, the CI was referred to Mental Health for further evaluation of his chronic pain, where he was diagnosed with Chronic Anxiety Disorder with Agoraphobia. While the CI did have a...
NAVY | BCNR | CY2001 | 02924-00
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. We have determined the evidence in this case does not (a) which requested comments and He was discharged on The petitioner's case history, contained in reference (a), was 2. thoroughly reviewed in accordance with reference The following comments and recommendations are provided: (b) and is...
AF | PDBR | CY2009 | PD2009-00566
This review was completed and the initial rating was corrected to a 70% rating for 9211 Schizoaffective Disorder, Depressed Type. These records support a diagnosis of schizoaffective disorder, depressed type (as opposed to mood disorder NOS) as well as either personality disorder or traits. As discussed above, PEB rated the CI’s mental health condition IAW with DoDI 1332.39 which was in effect at the time the CI separated from service and the condition was adjudicated independently of that...
AF | PDBR | CY2009 | PD2009-00377
After the second periodic TDRL Re-Evaluation, the CI was referred to the Physical Evaluation Board (PEB), determined unfit for the condition, and separated at 0% disability using the Veterans Affairs Schedule for Ratings Disabilities (VASRD) and applicable Naval and Department of Defense regulations. The military disability rating must be determined by the CI’s condition at the time of separation from the TDRL and her condition at that time warrants a 10% rating. Only conditions the CI was...
AF | PDBR | CY2010 | PD2010-01080
The most proximate source of comprehensive evidence on which to base the permanent rating recommendation in this case is the VA psychiatric rating evaluation four months after separation. The CI was in treatment by the Worchester VA for three months before the MEB evaluation. Exhibit C. Department of Veterans' Affairs Treatment Record.